R/CR.MA/20004/2017 JUDGMENT DATED: 30/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 20004 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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GHANSHYAMBHAI NAVALKISHOREBHAI JAGAD
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR YATIN SONI(868) for the Applicant(s) No. 1
MR. HARDIK MEHTA, APP for the Respondent(s) No. 1
RULE SERVED THRU CONCERNED POLICE STN for the Respondent(s)
No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 30/01/2023
ORAL JUDGMENT
1. This application has been filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") for quashing the FIR bearing CR No.I- 29/2017 registered with Gangajaliya Police Station, District - Bhavnagar for offences Page 1 of 16 Downloaded on : Thu Feb 02 20:42:50 IST 2023 R/CR.MA/20004/2017 JUDGMENT DATED: 30/01/2023 punishable under sections 406, 420, 467, 468, 471, 192 and 114 of the IPC and to terminate all the subsequent proceedings in connection with the FIR.
2. The prayer is made by the applicant - original accused No.6, who is a practitioner-advocate since 2009. It is stated by the applicant that he is practicing in the trial Court mainly on the revenue side and he wass a junior advocate at the time, when the FIR was registered. It is also stated that the applicant had discharged his professional duty by drafting two affidavits and two sale deeds, for that work he was paid fees of Rs.5,000/-.
3. As per the FIR, complainant - Gopalbhai Hiralal Mehta and his wife are residing together with their son Paragbhai and another son Ketanbhai is staying in U.S.A. since last 10 years prior to the complaint. As per the complainant, the accused persons committed offence of forgery and cheating by executing forged documents, wherein, it is shown that he and his wife are dead and forged pedhinama was prepared and on the basis of forged will and heirship affidavit, some fictitious persons had executed two sale deeds with regard to two plots bearing nos. 80 and 81 situated at Bhavnagar Sidhsar, land revenue survey no. 98 /2 and thereby, all accused persons jointly committed offence of forgery and cheating. On the basis of the information, the FIR was registered for the offence punishable under Sections 406, 420, 467, 468, 471, 192 and Page 2 of 16 Downloaded on : Thu Feb 02 20:42:50 IST 2023 R/CR.MA/20004/2017 JUDGMENT DATED: 30/01/2023 114 of the Indian Penal Code.
4. Learned advocate Mr. Yatin Soni for the applicant submitted that the present applicant has performed only his professional duty. He also submits that the allegations against him is that the co- accused is identified by him as Mr. Ketan Gopalbhai Mehta, who came with forged documents including his forged identity proof. Learned advocate Mr. Soni submits that the co -accused was recommended and have came with another advocate Mr. Ashvin M. Chauhan and accordingly the applicant under a bona- fide belief prepared two affidavits of heirship and two sale deeds as per the documents viz. Certificate of legal heirs, Election card, Original will, Death Certificate of Hemaben and Gopalbhai and the Panchnama of Pedhinama and Public Notice published in the Sandesh Newspaper. Learned advocate Mr. Soni submitted that as per information provided to applicant he as an advocate had considered the said person as genuine, as he was introduced by one advocate Mr. Ashvin M. Chauhan.
5. Learned advocate Mr. Soni submits that one co-accused Mr. Ajay had purchased stamp papers in his name and while purchasing the same, Mr. Ajay had signed on behalf of the applicant. He also submits that the applicant was not at all aware that the alleged documents were forged one and fictitious person had approached him through advocate Mr. Ashvin M. Chauhan. It is further submitted Page 3 of 16 Downloaded on : Thu Feb 02 20:42:50 IST 2023 R/CR.MA/20004/2017 JUDGMENT DATED: 30/01/2023 that the applicant was not knowing Mr. Ajay, who had purchased stamp papers on behalf of the applicant and the fictitious person Mr. Ketan Gopalbhai Mehta, who had signed as Mr. Ketan Gopalbhai Mehta.
6. Learned advocate Mr. Soni submits that the original owners has filed two suits being Regular Civil Suit Nos. 207 / 2017 and 208 / 2017, in the Court of Hon'ble Principal Senior Civil Judge at Bhavnagar and the suits are allowed as purchaser had given consent in favour of plaintiffs and on the basis of the consent term decree was drawn.
7. Learned advocate Mr. Soni has placed reliance upon the judgments, in the case of Hira Lal Jain Vs. Delhi Administration, reported in (1973) 3 SCC 398, in the case of Hazara Singh vs. Union of India and Others, reported in (1973) 3 SCC 401, in the case of State of Gujarat vs. Kirtikumar Nandlal Koticha reported in 2019 JX (Guj) 1263, in the case of Rameshbhai Vallabhbhai Korat Vs. State of Gujarat reported in 2014 (3) GLR 2653, in case of Pravinsinh K. Raol vs. State of Gujarat reported in 2014 JX (Guj) 538, in case of Girishbhai Jashwantlal Bhatt vs. State of Gujarat, reported in 2011 JX (Guj)
887.
8. Learned advocate Mr. Soni has placed reliance on the above Page 4 of 16 Downloaded on : Thu Feb 02 20:42:50 IST 2023 R/CR.MA/20004/2017 JUDGMENT DATED: 30/01/2023 judgments and submitted that the lawyer is an officer of the Court, and during the course of his practice, he has to identify the person and for that, he was not duty bound to know the sureties, only on the basis of the documents provided by the person to identify him the advocates considered Ketan Mehta as genuine. Learned advocate Mr. Soni also submits that generally the main income of some of the lawyers in trial Court is derived from identification of surety in the Court, and for that the lawyers are not duty bound to check correctness of the persons and the advocate is not expected to work as a Police to investigate the genuiness of the documents. Learned advocate Mr. Soni submits that here in this case, no role was played by the advocate in allegedly having prepared or forged or fabricated documents in form of identification of the person, who has identified himself as Ketan Gopalbhai Mehta. Under instructions applicant had drawn the sale deed and the heirship affidavits and for that he was paid Rs.5,000/-.
9. Learned APP Mr. Mehta for the respondent - State relying on the report of the Police Inspector of Gangajaliya Police Station, District - Bhavnagar submitted that allegation against the present application is of identifying the deponent of the affidavit before Notary - Narendrabhai Vyas being the affidavit Nos. 5592/2015 and 5593 / 2015 and said affidavits were registered on 10.03.2015. As per the Notary, the present applicant had identified Mr. Kentan Bhai Page 5 of 16 Downloaded on : Thu Feb 02 20:42:50 IST 2023 R/CR.MA/20004/2017 JUDGMENT DATED: 30/01/2023 Gopalbhai Mehta. He further submitted that the Sub Registrar - Bhavnagar, Ruva (3) - Akabarbhai Hajibhai Brahniya had also stated before the Police that the present applicant had come before his Office for the sale deed No. 407/2015 and 408/2015 dated 10.03.2015. The heirship affidavit and other documents were notarized by Mr. Narendra G. Vyas and the plot was purchased by Bhaveshbhai Harjibhai Beladiya and sold by Ketanbhai Gopalbhai Mehta. Both the parties were identified by Dipakbhai Thakarshibhai Sachpara and Hiteshbhai Premjibhai Koshia along with all those parties the present applicant as lawyer had come with them.
10. Learned APP submits that as per the statement of Talati of Ahmedabad Rajpur - Hirpur Indravadanbhai Solanki the Pedhinama was not registered and the said Pedhinama was not issued by his Office.
11. Learned APP submits that the person - Hamidbhai Yusubhai Makarani, who is in the Office of the present applicant stated that he under the instructions of the applicant had gone to the Registrar's office to receive the disputed sale deed.
12. Referring the statement of Dipakbhai Thakarshibhai Sachpara, learned APP submits that the said witness, on 10.3.2015 had gone to the Office of the Registrar to get the information regarding the Jantri price, of plat No. 61 to 64, which was in the name of his Page 6 of 16 Downloaded on : Thu Feb 02 20:42:50 IST 2023 R/CR.MA/20004/2017 JUDGMENT DATED: 30/01/2023 father, at that time he met Bhaveshbhai, who he had known since last 8 years as a diamond broker, had informed him that as he had come there for registration of sale deed of two plots and since the witnesses have not arrived, Bhaveshbhai asked him to be witness in the sale deed. For that, initially he had denied, but when the present applicant, Advocate Ghanshyambhai Jagade told them that every thing was legal and tittle was clear, there is nothing wrong in signing the sale deed which he had prepared, therefore, the witness has given his consent to be a witness in the sale deed.
13. Learned APP submitted that the present applicant as an advocate was involved in the matter from the inception knowing about all the fabricated documents, inspite of that he had assisted the person who has impersonated himself as Ketan Mehta for registration of the sale deed and creating the Pedinama.
14. Learned APP submitted that on the basis of the statement of Bhavesh Harjibhai Beladiya, he along with Gopalsingh and Ashiwnbhai and keshubha Rathod had gone to the present applicant and upon seeing the file, Bhavesh asked Gopalsing and Ashwinbhai to complete the file and as per his statement he knew advocate Ghanshyambhai and therefore had gone to the office of advocate Ghanshyambhai, where he had assured to make deficient documents and the sale deed, and therefore sale deed was prepared to purchase the plot. Accordingly, thereafter he had given Page 7 of 16 Downloaded on : Thu Feb 02 20:42:50 IST 2023 R/CR.MA/20004/2017 JUDGMENT DATED: 30/01/2023 Rs. 7 lacs to Ashwinbhai, on 9.3.2015 the present applicant had informed him through phone that the sale deed is ready and asked him to collect the same from his office, accordingly, as per his statement, he had shown the will and the death certificate.
15. Learned APP submits that Gopalbhai Himatlal Mehta and his wife Hemaben though alive, the death certificate was forged. On the basis of the death certificate, heirship Pedhinama was prepared and heirship affidavit was executed in the name of son of the complainant Ketanbhai Gopalbhai Mehta, who had never travelled to India, during the relevant time and in his name the affidavit was executed and the present applicant had identified him before the notary.
16. Learned APP submits that the documents which were shown to him were false and fabricated. Inspite of that the sale deed was executed and he identified the person as Ketanbhai Mehta.
17. As per the documents and report, the present applicant had drafted two affidavits and two sale deeds, since notary would require identification of the deponent and as a general practice, the Notary public would get identification of the deponent through an advocate or someone who is known to the Notary. Here in this case, the present applicant had identified the executant of the affidavit before the Notary who affixed the Photograph and the same person Page 8 of 16 Downloaded on : Thu Feb 02 20:42:50 IST 2023 R/CR.MA/20004/2017 JUDGMENT DATED: 30/01/2023 who had signed as Ketanbhai Mehta, had also produced the copy of the identity card issued on 21.1.2007 by the Election Commission of India, and the address shown is 10 - Rameshwar Park, Maninagar, Ahmedabad. The will is unregistered dated 5.7.1997, which is signed by Gopal Hiralal Mehta, wherein the witnesses are Pandya Dineshbhai Bhagwanbhai, Harjivan Ramjibhai Rathod and Gathiya Ramnik Trikamlal. Here in this will, it is not alleged that the witness is the present applicant. The death certificate of Hemaben is showing date of death as 2.3.1994 and the place of death is Mumbai West and permanent resident of the deceased is shown as R- 600 - 003, Ahmedabad. The Pedhinama shows the date of death as 01.03.1998 of Gopalbhai Hiralal Mehta and the only survivor is his son - Ketanbhai Gopalbhai Mehta. The present applicant has not been shown as witness in the said Pedhinama.
18. The Public Notice was issued by the learned advocate Mr. L. N. Devmurari of Amreli in the Sandesh Newspaper for sale of the land by Ketanbhai Gopalbhai Mehta and by this public notice invited the objections.
19. Regular Civil Suit Nos. 207 of 2017 and 208 of 2017 were settled at National Lok Adalat as per the settlement between the parties and accordingly, the decree was drawn. A copy of the settlement shows that the property is re-transferred to the Gopalbhai Hiralal Mehta and Ketanbhai Mehta. One Vipul Anantray Page 9 of 16 Downloaded on : Thu Feb 02 20:42:50 IST 2023 R/CR.MA/20004/2017 JUDGMENT DATED: 30/01/2023 Mehta appeared to be a power of attorney holder and the sale deed, was decided to be cancelled. Accordingly, the names of the plaintiffs were decided to be registered by cancelling the name of the defendant. As per the settlement, the purchaser of the property gave back the property to both the plaintiffs and noted that the criminal action would be persued against person who had identified himself as Ketanbhai Gopalsingh who had brought Kethanbhai to them and Ashwinbhai Chauhan, whereas, the settlement does not reflect the name of the present applicant to be prosecuted.
20. In the judgments produced by learned advocate Mr. Soni, in case of Hira Lal Jain Vs. Delhi Administration (Supra), para -9 observes as under:
"9. Admittedly, the appellant has neither impersonated nor committed any forgery.
The real charge against him is that of conspiracy under Section 120-B I.P.C. But there is no prima facie evidence in respect of this charge. The documentary evidences only shows that the appellant made applications on behalf of the other accused, that he filed his Vakalatnama and that he identified them as the real claimants.
It is well known that the main income of many lawyers in the District Courts is derived from the work of identifying persons and sureties in the Courts." 20.1 In the case of State of Gujarat Vs. Kirtikumar Nandlal Koticha (Supra), para -8 of the judgment is as under:
Page 10 of 16 Downloaded on : Thu Feb 02 20:42:50 IST 2023 R/CR.MA/20004/2017 JUDGMENT DATED: 30/01/2023 "..... All the five opposite parties are Advocates and, as such, they were not duty bound to be knowing the sureties and if the particular party had produced impostors in place of actual sureties mentioned, the Advocate cannot be held responsible. They had only identified the sureties on the basis of documents produced by them. If those documents wereforged or fabricated, the Advocate cannot be held responsible. The law on this point is well settled as discussed by both the Courts below. Further, nothing contrary has been shown by the learned APP. Thus, this Court does not find any error in the findings recorded by the courts below and, as such, this petition lacks merit and accordingly dismissed."
201.2 In the case of Rameshbhai Vallabhbhai Korat Vs. State of Gujarat (Supra), wherein it is observed that the allegation in the complaint is that the title clearance certificate was issued by the advocate, which turned out to be inaccurate it was held that at worst, the applicant can be said to have shown negligence and considering the circumstances of the case, the applicant cannot be held liable for forgery or cheating. 20.3 In the case of Pravinsinh K. Raol Vs. State of Gujarat (Supra), wherein it is observed that in preparation of forged release deed, the complainant was alleged to be deprived from his right in the ancestral property on account of preparation of forged release deed. The applicant being an advocate issued title clearance certificate in respect of the property, considering the scope and meaning of "forgery", held no role of the applicant in alleged deprivation of share of the complainant. The applicant has not certified that complainant has no share in the ancestral property. The applicant cannot be said to have committed forgery if the applicant is misled by any forged document said to produced before him.
20.4 In the case of Girishbhai Jashwantlal Bhatt Vs. State of Gujarat (Supra), wherein it is observed that Page 11 of 16 Downloaded on : Thu Feb 02 20:42:50 IST 2023 R/CR.MA/20004/2017 JUDGMENT DATED: 30/01/2023 the applicant was an advocate who issued the clearance certificate based on the documents produced by the bank along with the loan application papers, nothing was on record to indicate as to whether he had gained anything from the alleged crime, he does not appear to have any connection with other accused, who allegedly played role in obtaining the loan and he being a professional advocate in the panel of the bank has to issue certificate on perusal of the documents produced by the bank along with the loan papers. When his role as a conspirator could not be prima facie established from the record, he cannot be tried for the offences and hence, complaint qua him is required to be quashed."
21. In the present case, the facts suggest that Gopalbhai, Ashwinbhai and Keshubhai Rathod had gone to the present applicant, the file was shown to him and accordingly he assured that the rest of the papers would be completed and the sale deed would be drawn. The papers as alleged to have been executed are heirship affidavit and sale deed, and, the affidavit had been executed before the Notary. The present applicant had identified the person as Ketan Mehta, who was holding Election identity card issued by the Election Commission of India. The photograph was also affixed on the said affidavit before the Notary, which is same as shown in the identity card issued by the Election Commission of India. The will is unregistered documents, where the lawyer would have no scope of finding out, whether it was forged. Further, the death certificate of Hemaben was also produced before the Notary. The Pedhinama executed before the Revenue Talati, City Ward No. 5 was also produced. Further, a Public Notice was issued on 24.2.2015 by the Page 12 of 16 Downloaded on : Thu Feb 02 20:42:50 IST 2023 R/CR.MA/20004/2017 JUDGMENT DATED: 30/01/2023 advocate Mr. L.N. Devmurari. The regular Civil Suits Nos. 207 and 208 of 2017 were settled. Prima-facie, there is no case of any forgery or fabricated document by the present applicant. The person
- Ketanbhai Gopalbhai Mehta was identified by the present applicant on the basis of identity card issued by the Election Commission of India. The only act, which the present applicant has performed as a part of professional duty is of identifying Ketan Mehta before the Notary. This Court has not found any act of the present applicant as alleged in the complaint, criminal in nature with the intention to cheat, in conspiracy with other co-accused.
22. In case of State of Haryana V. Bhajan Lal & Ors., reported in AIR 1992 SC 604, the Hon'ble Apex Court formulated as many as seven categories of cases, wherein the extraordinary power under Section 482 could be exercised by the High Court to prevent abuse of process of the court. It was clarified that it was not possible to lay down precise and inflexible guidelines or any rigid formula or to give an exhaustive list of circumstances in which such power could be exercised. The Hon'ble Apex Court in the said case made the following observations:-
"8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given by Page 13 of 16 Downloaded on : Thu Feb 02 20:42:50 IST 2023 R/CR.MA/20004/2017 JUDGMENT DATED: 30/01/2023 way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guide in myriad kinds of cases wherein such power should be exercised:
(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(c) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;Page 14 of 16 Downloaded on : Thu Feb 02 20:42:50 IST 2023
R/CR.MA/20004/2017 JUDGMENT DATED: 30/01/2023
(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and / or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
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23. Thus, in view of observation and reasons given herein above and taking into consideration the facts and circumstances of the case, the impugned FIR and subsequent proceedings arising therefrom are required to be quashed and set aside.
24. In the result, the petition is allowed. The FIR bearing CR No.I- 29/2017 registered with Gangajaliya Police Station, District - Bhavnagar, and the proceedings initiated in pursuance thereof are quashed and set aside qua the present petitioner. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(GITA GOPI,J) prk Page 16 of 16 Downloaded on : Thu Feb 02 20:42:50 IST 2023