NEUTRAL CITATION
R/CR.MA/17382/2015 ORDER DATED: 18/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 17382 of 2015
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VELBAI HIRJIBHAI VAKERIA & 1 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR PRAVIN GONDALIYA(1974) for the Applicant(s) No. 1,2
MR VIRAL VYAS for MR ASHISH M DAGLI(2203) for the Respondent(s) No.
2
MR RONAK RAVAL, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 18/08/2023
ORAL ORDER
1. Heard learned advocate Mr. Pravin Gondaliya appearing for the petitioners, learned advocate Mr. Viral Vyas for learned advocate Mr. Ashish Dagli for respondent No.2 and learned APP Mr. Ronak Raval for the respondent State.
2. The present application has been filed seeking quashing and setting aside the impugned First Information Report (FIR) being I-C.R.No. 140 of 2015 registered with Bhuj City, "A" Division Police Station, Bhuj, District: Kachchh for the offence punishable under Sections 465, 467, 468, 471, and 114 of the IPC.
3. The facts in nutshell are that the first informant has filed the impugned FIR on 08.09.2015, inter alia, stating that his Page 1 of 6 Downloaded on : Sun Sep 17 01:34:17 IST 2023 NEUTRAL CITATION R/CR.MA/17382/2015 ORDER DATED: 18/08/2023 undefined father viz. Ramsing Shekhavat was in Army and when he got retired, the Government granted him a parcel of land in the year of 1976 of Old Survey No. 1324 paiki 15 acres (in short "the land in question") for the purpose of doing agricultural activities. This land was new tenure land. The FIR further spells that according to the first informant, they were doing agriculture activity on that land. It is further alleged that one power of attorney was executed by his father on 07.10.2004 before the Mamlatdar, which was forged and false. In the impugned FIR, it is further stated that based on false and forged power of attorney, a registered sale deed was executed in favour of the present petitioners at serial No. 3930 on 26.03.2012 and a revenue entry was made with the help of accused No. 3. The first informant came to know about the sale transaction when he has obtained the abstract of village form No. 7 & 12 from the revenue office. Thus, allegations are made for forging the power of attorney and producing the same as genuine for executing the sale deed. Therefore, impugned FIR is filed.
4. The role of the present petitioners are marked as that they got the land in question by way of registered sale deed which was executed upon such forged and false power of attorney.
5. Learned advocate Mr. Pravin Gondaliya appearing for the petitioners would submit that the Mamlatdar has converted the said land into Old Tenure by order dated 21.02.2003 bearing number Land/Vashi-519/2003 by imposing appropriate premium. It is also argued that on the same day, the payment was made by the father of the first informant and the receipt to that effect was also issued and consequent thereto, on Page 2 of 6 Downloaded on : Sun Sep 17 01:34:17 IST 2023 NEUTRAL CITATION R/CR.MA/17382/2015 ORDER DATED: 18/08/2023 undefined 7.10.2004, the father of the first informant has also executed the power of attorney in favour of one Mr. Ramjibhai Vekaria. He would further submit that based on such power of attorney, a sale deed was executed on 20.01.2009 in favour of the petitioner No.1 and the payment was also made to the first informant. He would further submit that possession of the land in question had been also handed over to the present petitioners and since then, the petitioners are in possession of the land in question. He would further submit that since the price of the land in question has escalated for the particular region, the false and frivolous complaint has been filed.
6. Learned advocate Mr. Gondaliya would further submit that the power of attorney was sent to the FSL pursuant to the order passed by this Court on 25.6.2019 passed in Criminal Misc. Application No.18982 of 2015. The FSL report dated 28.6.2019 opined that signature of the executor of the power of attorney is genuine. He would further submit that said FSL report has been placed on record in Criminal Misc. Application No.18982 of 2015.
7. Having relying upon the judgment dated 1.8.2019 passed by the Coordinate Bench of this Court in Criminal Misc. Application No.18982 of 2015, learned advocate Mr. Gondaliya would submit that since the Coordinate Bench of this Court found that the signature on the power of attorney is genuine, the FIR filed against accused Ramjibhai Vekaria was quashed. Under these circumstances, he would submit that the impugned FIR is nothing, but clear misuse of provisions of law since the same is registered with mala fide intention or unjust motive to Page 3 of 6 Downloaded on : Sun Sep 17 01:34:17 IST 2023 NEUTRAL CITATION R/CR.MA/17382/2015 ORDER DATED: 18/08/2023 undefined create undue pressure upon the petitioners, and therefore, the same is required to be quashed and set aside.
8. Learned APP Mr. Ronak Raval placed on record the report submitted by the PSI, Bhuj City "A" Division Police Station, which is taken on record. Upon his vehemence, learned APP would submit that it is a clear case where all the grounds mentioned in the petition can be considered at the time of trial and no case is made out to quash the impugned FIR. Upon this submission, he prays to dismiss the petition.
9. Joining hands with learned APP Mr. Ronak Raval, learned advocate Mr. Viral Vyas for learned advocate Mr. Ashish Dagli for respondent No.2 would submit that let the trial be allowed to go on. He would further submit that whether the signature on the power of attorney was forged or genuine one can be verified after examining the concerned person from the FSL, who has filed the report. Thus, the case of the complainant cannot be scuttled at threshold. Upon this submission, he prays to dismiss the petition.
10. Having heard learned advocates for both the sides, at the outset, let refer relevant para of the judgment passed by the Coordinate Bench of this Court in Criminal Misc. Application No.18982 of 2015, which reads as under:-
"9. Learned Additional Public Prosecutor Mr. Soni for the respondent State on instruction of the Investigating Officer has submitted that pursuant to the order passed by this Court on 25.06.2019, the concerned Power of Attorney Holder was sent to the Page 4 of 6 Downloaded on : Sun Sep 17 01:34:17 IST 2023 NEUTRAL CITATION R/CR.MA/17382/2015 ORDER DATED: 18/08/2023 undefined Forensic Science Laboratory (FSL) and by the report dated 28.06.2019, the FSL has opined that the concerned document is found to be genuine. The report dated 28.06.2019 is ordered to be taken on record
10. Learned advocate Mr. Dagli for the respondent No.2- first informant has submitted that at this stage, the impugned FIR may not be quashed and set aside and the trial may be further directed to be proceeded.
11. In the impugned FIR it is alleged by the first informant that the power of attorney, which is executed by his father on 07.10.2004 before the Mamlatdar is forged and false and by placing reliance upon such POA, the registered sale deed, which is executed in favour of the accused No.2 at serial No. 3930 on 26.03.2012 is also forged. Thus, the entire gist of the allegations made against the applicant is based upon the POA executed on 07.10.2004. The aforesaid documents was referred to the FSL for examination and after the same was examined, the FSL has filed the report dated 28.06.2019 and opined that the POA is genuine and the same is not forged and false. Thus, in view of the report of the FSL, no offence, as alleged by the first informant in the impugned FIR, is established.
12. In this view of the matter, the impugned FIR being I-C.R.No. 140 of 2015 registered with Bhuj City Division Police Station, Bhuj, District: Kachchh for the offence under Sections 465, 467, 468, 471, 471 and 114 of the IPC as well as subsequent proceedings arising out of the same FIR are hereby quashed and set aside. Rule is made absolute."
11. Thus, the Coordinate Bench has opined in its judgment that the signature on the power of attorney is not false but is genuine. The sale deed is executed upon such power of attorney. The role of the petitioner of Criminal Misc. Application No.18982 Page 5 of 6 Downloaded on : Sun Sep 17 01:34:17 IST 2023 NEUTRAL CITATION R/CR.MA/17382/2015 ORDER DATED: 18/08/2023 undefined of 2015 was that he has been arraigned in the FIR as he has forged and fabricated the power of attorney. Insofar as the role of the present petitioners are concerned, they are purchasers of the land in question. Since he Coordinate Bench has opined in its judgment that the signature on the power of attorney is not false but is genuine, the sale deed is executed upon such power of attorney cannot be said to be illegal. In view of that, allowing the present FIR to culminate into the criminal trial is misuse of process of this Court.
12. In background of the facts of the case, this Court is of the view that the case of the present petition falls within the parameter Nos.1st, 5th and 7th respectively of the judgment of the Hon'ble Apex Court in case of State of Haryana Vs. Bhajanlal reported in AIR 1992 SC 604.
13. For the foregoing reasons, present petition is allowed and impugned FIR being I-C.R.No. 140 of 2015 registered with Bhuj City Division Police Station, Bhuj, District: Kachchh for the offence under Sections 465, 467, 468, 471, 471 and 114 of the IPC as well as subsequent proceedings arising out of the same FIR are hereby quashed and set aside.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 6 of 6 Downloaded on : Sun Sep 17 01:34:17 IST 2023