Harun Yusuf Hanslod vs State Of Gujarat

                                                                                NEUTRAL CITATION




     R/CR.MA/17592/2020                          JUDGMENT DATED: 11/10/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                     FIR/ORDER) NO. 17592 of 2020
                                With
            R/CRIMINAL MISC.APPLICATION NO. 16979 of 2015
                                With
             R/CRIMINAL MISC.APPLICATION NO. 4788 of 2020

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT                   Sd/-

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1      Whether Reporters of Local Papers may be allowed              Yes
       to see the judgment ?

2      To be referred to the Reporter or not ?                       Yes

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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                          HARUN YUSUF HANSLOD
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR MAHMOOD A MADNI(5092) for the Applicant(s) No. 1,2
for the Respondent(s) No. 2
MS MONALI BHATT, APP for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                             Date : 11/10/2023
                             ORAL JUDGMENT

1. Since all these petitions are filed by different accused persons against the same FIR, all these petitions are taken Page 1 of 30 Downloaded on : Wed Oct 18 20:31:24 IST 2023 NEUTRAL CITATION R/CR.MA/17592/2020 JUDGMENT DATED: 11/10/2023 undefined up for consideration and are decided together by this common judgement. By filing these petitions, the petitioners have prayed to quash and set aside FIR being C.R.No.I-160 of 2015 lodged with Kosamba Police Station, Surat (Rural), and all consequential proceedings arising out of same FIR for the offences punishable under Sections 465, 467, 468, 471 and 114 of the Indian Penal Code, so far as present petitioners are concerned.

2. As the facts are by and large similar in all these petitions, for the purpose of deciding these petitions, facts are taken from Criminal Misc. Application No.17592 of 2020 which are as under:-

2.1 The first informant has narrated a story in the FIR that the agricultural land situated in Block No.117, Block No.133, Village-Ghunti, Taluka-Mangrol, District-Surat, was in the joint names of accused no.1 and his maternal uncle-in-

law. However, in absence of his uncle in law who passed away on 17.10.1995, the said land was sold in the year 2006.

In such circumstances, the first informant communicated with the family members of his maternal uncle-in-law and with an intention to take further action in the matter convinced them to execute a power of attorney in his favour. Such power of attorney dated 01.07.2011 was executed in favour of first Page 2 of 30 Downloaded on : Wed Oct 18 20:31:24 IST 2023 NEUTRAL CITATION R/CR.MA/17592/2020 JUDGMENT DATED: 11/10/2023 undefined informant. Ever since the first informant is pursuing all the issues attached to the above referred land, ultimately on 28.08.2015, the first informant lodged the impugned FIR also.

As per the narration given in the FIR, the seller of the land i.e. accused no.1 prepared a pedigree wherein the maternal uncle-in-law was shown as the brother of the accused no.1 however, he was shown unmarried and without any progeny.

It was also stated in said pedigree that he has passed away in the year 1995. The pedigree shows that when it was prepared by the village officer, it was needed to be verified by a "Panchkias" and such panchkias bears signature of the applicants. It is pertinent to note that above panchkias was passed upon an affidavit of fact affirmed by accused no.1.

2.2 The applicants state that though the FIR came to be lodged as back as on 28.08.2015, the applicants of Criminal Misc. Application No.17592 of 2020 came to be arrested on 03.09.2018.

2.3 The accused nos.7 to 13 have approached this Hon'ble Court by way of an application by invoking the inherent jurisdiction of this Hon'ble Court under Section 482 of the Code of Criminal Procedure, by filing Criminal Misc.

Application No. 16979 of 2015 wherein the Hon'ble Court was pleased to grant protection to accused nos.7 and 13.

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3. I have heard Mr.M.A.Kharadi for the petitioner in Criminal Misc. Application No.17592 of 2020 and Mr.Tanmay Kariya for the petitioner of Criminal Misc. Application No.4788 of 2020 and Ms.Mohini Bhavsar for Mr.Bharat Dave in Criminal Misc. Application No.16979 of 2015 and Mr.Rahul Dave for the original complainant and learnedap for the respondent state.

4. At the outset, it is treated by Mr.Rahul Dave, learned advocate for the complainant that original complainant has expired during the pendency of these petitions.

5. It is the case of the complainant that maternal uncle-

in-law of complainant and Yusuf Kasam Patel as well as real sister of the complainant i.e.Sugarabibi, who happens to be daughter of Kasim Patel were holding land situated in Block No.117, Block No.133, Village-Ghunti, Taluka-Mangrol, District-Surat, which was owned at the relevant point of time by Yusuf Kasim Patel, who shifted to London and expired on 7.10.1995. Heirs of Yusuf Kasim Patel i.e. his wife Noorjahan and children are there, however, as they could not come from London for doing necessary process for Heirship in the revenue record, accused-Sugarabibi has prepared bogus pedigree (pedhinama) and stated that her brother Yusuf Kasim Patel had not married and he expired without having Page 4 of 30 Downloaded on : Wed Oct 18 20:31:24 IST 2023 NEUTRAL CITATION R/CR.MA/17592/2020 JUDGMENT DATED: 11/10/2023 undefined any children. Such pedigree (pedhinama) is signed by accused nos.2 to 6 as witnesses and accused no.7 has purchased the stamp paper in his name and, therefore, on the basis of such pedigree (pedhinama) and affidavit filed before Mamlatdar, Mangrol, name of accused no.1 was entered into revenue record and entries in Village Form Nos.6 and 7/12 are also certified. Thereafter, said land is sold to accused nos.7 to 13 by register Sale Deed. Therefore, offence is committed by all the accused persons.

6. Learned advocates for the respective petitioners have drawn attention of the Court to role of the petitioners as alleged in the FIR. It is submitted by all the learned advocates that accused Sugarabibi is now settled in Canada and she is not yet arrested. Criminal Misc. Application No.16979 of 2015 is filed subsequent purchasers of the land in question, while Criminal Misc. Application No.4788 of 2020 and Criminal Misc. Application No.17592 of 2020 are filed by the witnesses to the documents in question. Considering the role of Harun Hanslod, he has signed the panchnama of pedigree as a witness of panchkyas. Accused Ayub Suleman Patel has also signed such pedigree as a witness of panchkyas. Accused Dineshchandra Bhagwanji Patel has purchased the stamp paper in his name and that was used for preparing the affidavit and pursuant to that such pedigree is prepared.

NEUTRAL CITATION R/CR.MA/17592/2020 JUDGMENT DATED: 11/10/2023 undefined 6.1 On the basis of said pedigree and affidavit, entry is certified in revenue records and, thereafter, against such entries, revenue proceedings are also initiated. At present, such proceedings are pending before Special Secretary, Revenue Department. However, all the petitioners have not played an active role except either signing as witness or they have purchased the stamp paper, which is thereafter used for preparing affidavit, but said document is never executed by any of the petitioner. Therefore, it is submitted that considering the material available on the record, prima facie no offence is made out against present petitioners.

6.2 It is also submitted that the complaint is filed after delay of nine years from date of transaction in question and even if date of execution of power of attorney in the year 2011 is taken into consideration, then also FIR is filed on 28.8.2015 i.e. after four years of execution of Power of Attorney. Therefore, considering such an inordinate delay, present proceedings are required to be quashed. Learned advocates for the parties have relied upon following judgments.

(i) Chanchalpati Das Versus State Of West Bengal with Madhupandit Das Versus State Of West Bengal reported in 2023 (0) AIJEL SC 71074;

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(ii) M.Srikanth v. State of Telangana and Another reported in 2019 (10) SSC 373; and

(iii) State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604.

6.3 By relying upon aforesaid judgments, it is submitted that no fruitful purpose will be served by continuing present proceedings against present petitioners as no ingredients of alleged offences are satisfied against present petitioners. It is also submitted that, by considering the fact that this Court has granted interim relief and ordered that no coercive steps may taken against present petitioners, therefore, this Court has also found prima facie case and it is prayed that all these matters may be allowed. It is submitted that continuation of proceedings will amount to abuse of process of law, therefore, it is submitted that this is a fit case to exercise powers under Section 482 of Criminal Procedure Code by allowing present petition.

7. Mr.Rahul Dave, learned advocate for the complainant has submitted that the complainant has expired, therefore, now he cannot make submissions on his behalf. He has submitted that he has not received any instructions from heirs of the complainant, however, considering the facts and material available on record and the allegations of creation of Page 7 of 30 Downloaded on : Wed Oct 18 20:31:24 IST 2023 NEUTRAL CITATION R/CR.MA/17592/2020 JUDGMENT DATED: 11/10/2023 undefined bogus pedigree, and as all the accused persons have played an active role in committing such offence, prima facie case is made out against present petitioners.

8. Learned APP, Ms.Monali Bhatt has strongly objected to the prayers made in these petitions and tendered a copy of the report submitted by concerned police station, wherein specific roles of all the accused persons are mentioned. She has submitted that the panchkyas is also sent for handwriting expert's report at FSL and report is yet not received. She has submitted that charge sheet is already filed against Harun Yusuf Hanslod, Aadam Yusuf Hanslod and Rashid Dawood Patel and, therefore, she has submitted that when sufficient material is available against other accused persons, present petitions may not be entertained as the petitioners can put their defence before the Court at the time of trial. She has, therefore, prayed to dismis all these petitions.

9. I have considered rival submissions made at bar. The offences alleged against present petitioners punishable under Sections 465, 467, 468, 471 and 114 of IPC. Said provisions are reproduced hereunder:-

NEUTRAL CITATION R/CR.MA/17592/2020 JUDGMENT DATED: 11/10/2023 undefined "114. Abettor present when offence is committed. Whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence.

..............

465. Punishment for forgery.

Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. ...........

467. Forgery of valuable security, will, etc. Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

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468. Forgery for purpose of cheating.

Whoever commits forgery, intending that the [document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

.......

471. Using as genuine a forged document or electronic record.

Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall be punished in the same manner as if he had forged such [document or electronic record]."

10. Before proceeding further, this Court may refer to the observations of the Hon'ble Supreme Court in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, wherein the Hon'ble Supreme Court has illustrated the cases wherein inherent powers under Section 482 of the Criminal Procedure Code could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice and observed as under:-

NEUTRAL CITATION R/CR.MA/17592/2020 JUDGMENT DATED: 11/10/2023 undefined "In the backdrop of the interpretation of the various relevant provisions of the Code under Ch.XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Art.226 or the inherent powers under sec.482 of the Code which we have extracted and reproduced above, we give the following categories of cases by 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 guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) 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.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under sec.156(1) of the Code except under an order of a Magistrate within the Page 11 of 30 Downloaded on : Wed Oct 18 20:31:24 IST 2023 NEUTRAL CITATION R/CR.MA/17592/2020 JUDGMENT DATED: 11/10/2023 undefined purview of sec.155(2) of the Code.

(3) 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.

(4) 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 sec.156(2) of the Code.

(5) 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.

(6) 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.

NEUTRAL CITATION R/CR.MA/17592/2020 JUDGMENT DATED: 11/10/2023 undefined (7) 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."

11. It is also relevant to refer to the judgment of the Hon'ble Apex Court in the case of Inder Mohan Goswami and Another versus State of Uttaranchal reported in (2007) 12 SCC 1, more particularly para : 23 & 24 thereof, which read as under:-

"23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Sec. 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Sec. 482 CrPC can be exercised:

[(i) to give effect to an order under the Code;] [(ii) to prevent abuse of the process of court, and] [(iii) to otherwise secure the ends of justice.]

24. Inherent powers under Sec. 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified Page 13 of 30 Downloaded on : Wed Oct 18 20:31:24 IST 2023 NEUTRAL CITATION R/CR.MA/17592/2020 JUDGMENT DATED: 11/10/2023 undefined by the tests specifically laid down in this section itself'. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute. Discussion of decided cases."

12. Keeping in mind aforesaid provisions of law and the law laid donw in aforesaid decisions, I have also considered the role of petitioners of Criminal Misc. Application No.17592 and 4788 of 2020, which is limited to the extent that they have signed the pedigree is witness and such signature is put without any criminal intention. Therefore, it would not constitute any offence as alleged against them. In absence of any material found during the course of Investigation connecting the accused of these two petitions with the alleged offence and in absence of any mens rea, it cannot be said that offences under Sections 465, 467, 468, 471 and 114 of IPC is made out against the petitioners of these two petitions. Considering the contents of the FIR and the role attributed to these accused coupled with the provisions of alleged offences, it cannot be said that these accused have created any false document or they are the author of these documents on the contrary they are shown as witnesses.

NEUTRAL CITATION R/CR.MA/17592/2020 JUDGMENT DATED: 11/10/2023 undefined Considering this position, it is well settled that the person who has signed merely as a attesting witness of any document cannot be held liable for any criminality, unless there is some specific material to indicate that he is having some criminal intention or he has hatched any conspiracy with other accused persons. On bare reading of the complaint, no case is made out against petitioners of these two petitions.

13. So far is petitioners of Criminal Misc. Application No.16797 of 2015 are concerned, they are the purchasers of the property and they have entered into the transaction subsequent to the document produced by accused no.1 Sugarabibi for entering her name in the revenue record.

Sugarabibi might have committed the offence, as alleged in the complaint, but she is not yet arrested. The only allegation to implicate accused-Dineshchandra Patel is that he has purchased the stamp paper in question whereupon the affidavit is prepared. This accused might have purchased stamp paper, but it cannot be said that he has used the same for creating a forged document. Such affidavit is neither signed by petitioner no.1 nor it is created by him. This document might have been used for getting the revenue entry registered, however, that itself is not sufficient to connect the present accused with the crime in question because he has Page 15 of 30 Downloaded on : Wed Oct 18 20:31:24 IST 2023 NEUTRAL CITATION R/CR.MA/17592/2020 JUDGMENT DATED: 11/10/2023 undefined purchased the land by paying full sale consideration. Such transaction can be set aside by initiating appropriate civil proceedings by seeking appropriate declaration from the concerned Court. It is needless to say that the revenue authority has cancelled those entries and now the issue is pending before Special Secretary, Revenue Department. Those proceedings will be decided on its own merits, however, subsequent purchaser cannot be implicated in the present offence as there is no material except one document which is purchased by Dineshchandra Patel is stamp paper. On the basis which Sugarabibi has a created affidavit and, thereafter, pedigree is prepared but that itself is not sufficient to satisfy the ingredients of offences under Sections 465, 467, 468, 471 and 114 of IPC and, in absence of any Section being invoked for hatching conspiracy, merely invocation of Section 114 cannot be attracted in absence of any specific allegations or specific role and, more particularly, when the offence under that Section is not made out against present petitioner.

Therefore, the role ascribed to the present petitioner in the FIR does not constitute any prima facie offence. Therefore, it is relevant to refer to the judgement of the Honourable Apex Court in the case of M.Srikanth v. State of Telangana and Another reported in 2019 (10) SSC 373, wherein it is observed as under:-

NEUTRAL CITATION R/CR.MA/17592/2020 JUDGMENT DATED: 11/10/2023 undefined "20. The complaint filed by respondent No. 2 runs into 26 pages and 26 paragraphs. As already discussed hereinabove, it reveals a disputed property claim based on inheritance between the complainant, her sisters and her brother, accused No. 1. A perusal of the complaint would further reveal, that the complainant also disputes with regard to the area of the property including the manner of its devolution upon the parents of the complainant and her competing interest with that of her siblings. There is not even a whisper in the complaint that the present appellant, i.e., accused No. 4 was fully aware that accused No. 1 was not the sole beneficiary by inheritance and that the property had devolved upon the complainant and her sisters. Also there is nothing to show that knowing this he has collusively entered into the lease agreement with accused No. 1, by creating a false and fabricated will. Though, there is a mention with regard to conspiracy, but there is not even a suggestion with regard to manner of such conspiracy.

21. Upon perusal of the complaint itself, it would reveal that the father of the complainant and accused No. 3 had himself entered into a development agreement which subsequently came to be cancelled during his lifetime. It would also reveal, that only after the lease in question was executed in favour of the appellant, the complainant has raised all these issues. We are of the considered view, that the issues raised reflect a civil dispute with regard to Page 17 of 30 Downloaded on : Wed Oct 18 20:31:24 IST 2023 NEUTRAL CITATION R/CR.MA/17592/2020 JUDGMENT DATED: 11/10/2023 undefined inheritance amongst the legal heirs. We fail to understand as to how a dispute with regard to the inheritance under a will and deed of confirmation can be decided in a criminal proceeding. We find, that the same can be done only in an appropriate civil proceeding. Not only that, the civil proceedings with that regard are already instituted by various parties including the complainant. These proceedings are as follows:

(i) O.S. No. 239 of 2004 on the file of the Hon'ble XI ACJ, CCC, Hyderabad.

(ii) O.S. No. 337 of 2002 on the file of the Hon'ble XI ACJ, CCC, Hyderabad.

(iii) O.S. No. 58 of 2001 on the file of the Hon'ble XI ACJ, CCC, Hyderabad.

(iv) O.S. No. 277 of 2000 on the file of the Hon'ble XI ACJ, CCC, Hyderabad.

(v) O.S. No. 506 of 2001 on the file of the Hon'ble XI ACJ, CCC, Hyderabad.

(vi) Writ Petition (C) No. 685 of 2010.

22. It will be relevant to refer that though in the complaint, the complainant had mentioned about pendency of O.S. No. 1989 of 1996 against accused No. 3 and O.S. No. 1403 of 1999 against M/s Banjara Construction Pvt. Ltd., there is no reference with regard to the other proceedings. Accused No. 4 has been impleaded as a partydefendant in Page 18 of 30 Downloaded on : Wed Oct 18 20:31:24 IST 2023 NEUTRAL CITATION R/CR.MA/17592/2020 JUDGMENT DATED: 11/10/2023 undefined O.S. No. 506 of 2001 only on 30.10.2009.

23. O.S. No. 239 of 2004 has already been filed by the complainant against her brother, accused No. 1 and her three sisters inter alia for partition and separate possession which is stated to be pending. As such, the documents alleged to be fraudulent in the complaint will fall for consideration in the said suit. A possibility of contradictory finding in civil proceeding as against criminal proceedings cannot be ruled out. Though, the complainant had filed Writ Petition Nos. 23017/2009 and 23672/2009 to restrain construction on the plot in question, the same was dismissed on 28.10.2009. However, there is no mention with regard to the same in the complaint. This Court in Sardool Singh vs. Nasib Kaur, 1987 Supp. SCC 146 observed as follows:

"2. A civil suit between the parties is pending wherein the contention of the respondent is that no will was executed whereas the contention of the appellants is that a will has been executed by the testator. A case for grant of probate is also pending in the court of learned District Judge, Rampur. The civil court is therefore seized of the question as regards the validity of the will. The matter is sub judice in the aforesaid two cases in civil courts. At this juncture the respondent cannot therefore be permitted to institute a criminal prosecution on the allegation that the will is a forged one. That question will have to be decided by Page 19 of 30 Downloaded on : Wed Oct 18 20:31:24 IST 2023 NEUTRAL CITATION R/CR.MA/17592/2020 JUDGMENT DATED: 11/10/2023 undefined the civil court after recording the evidence and hearing the parties in accordance with law. It would not be proper to permit the respondent to prosecute the appellants on this allegation when the validity of the will is being tested before a civil court. We, therefore, allow the appeal, set aside the order of the High Court, and quash the criminal proceedings pending in the Court of the Judicial Magistrate, First Class, Chandigarh in the case entitled Smt Nasib Kaur v. Sardool Singh. This will not come in the way of instituting appropriate proceedings in future in case the civil court comes to the conclusion that the will is a forged one. We of course refrain from expressing any opinion as regards genuineness or otherwise of the Will in question as there is no occasion to do so and the question is wide open before the lower courts."

24. It is further to be noted, that the complainant and her sisters executed an agreement of salecumirrevocable specific power of attorney on 20.03.2015 in favour of one Mohd. Khalid Shareef. Various litigations have also been filed with regard to the installation of the petrol pump and grant of N.O.C. etc. The complaint was sent to the police for registration of an FIR and investigation under Section 156(3) of the Cr.P.C. on 24.11.2010. In its final report dated 30.08.2017, the police has opined that no material had surfaced to show any conspiracy during investigation.

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25. The learned Judge himself in Paragraph 8, after observing that it is nobodies case that the signatures on the documents in question are forged or anybody has impersonated for the purpose of cheating, goes on to observe thus:

"8...The allegation in nutshell in this regard is that accused No. 1 is not the absolute owner of the properties, but for one of the coowner or cosharer along with the de facto complainant and other sisters of them and he falsely claimed as if he is the owner for purpose of cheating by using as if genuine forged and fabricated documents of so called will and so called deed of confirmation. The so called will is of the year 1950 and the so called deed of confirmation is of year 19891990 and the alleged oral gift prior to that is of 1966.."

26. We fail to understand, as to how after observing the aforesaid, the learned Judge could have refused to quash the proceedings against accused No. 4. Not only that, but on the basis of the said observations, the learned Judge himself has observed that it will not be in the interest of justice to permit the Police authorities to arrest the accused for the purposes of investigation. We are of the considered view, that the learned Judge, having found that the entire allegations with regard to forgery and fabrication and accused No. 1 executing the lease deed on the basis of the Page 21 of 30 Downloaded on : Wed Oct 18 20:31:24 IST 2023 NEUTRAL CITATION R/CR.MA/17592/2020 JUDGMENT DATED: 11/10/2023 undefined said forged and fabricated documents were only against accused No. 1, ought to have exercised his jurisdiction to quash the proceedings qua accused No. 4 also. We find that the learned Judge ought to have applied the same parameters to the present accused No. 4, which had been applied to the other accused whose applications were allowed.

27. Insofar as the criminal appeals arising out of the special leave petitions filed by the original complainant is concerned, we absolutely find no merit in the appeals. The learned single Judge has rightly found that there was no material to proceed against accused No. 5 - HPCL and its officers accused Nos. 6 and 9 as also accused Nos. 7 and 8, who have been roped in, only because they were the attesting witnesses. The learned single Judge has rightly exercised his jurisdiction under Section 482 of the Cr.P.C.

28. Insofar as original accused No. 4 is concerned, we have no hesitation to hold, that his case is covered by categories (1) and (3) carved out by this Court in the case of Bhajan Lal (supra). As already discussed hereinabove, even if the allegations in the complaint are taken on its face value, there is no material to proceed further against accused No. 4. We are of the considered view, that continuation of criminal proceedings against accused No. 4, M. Srikanth, would amount to nothing else but an abuse of process of law. As such, his appeal deserves to be allowed."

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14. In the case of Chanchalpati Das Versus State Of West Bengal (supra), it is observed as under:-

"11. It is again pertinent to note that, even as per the case of the complainant, the alleged incident of bus theft had taken place in the year 2001, and it was only in 2009 that the substantial complaint was made in the Court of Chief Judicial Magistrate, Alipore. It is just not believable that the concerned Ballygunge Police Station, Kolkata would not have taken any action on the report made in 2002 on behalf of the powerful body like the ISKCON Kolkata, or on the letter dated 30.09.2006 written by the Branch Manager of the ISKCON, Kolkata. The respondent no. 2- complainant also did not take any concrete action for getting the said complaint registered with regard to the alleged theft of bus for a long period of eight years, till the complaint in the Court was filed in the year 2009. In the opinion of the Court such an inordinate delay of eight years in filing the complaint in the court itself would be a sufficient ground to quash the proceedings. If the luxury bus owned by the ISKCON, Kolkata Branch in 1998 was so precious to them, they would not have sat silent for such a long time of eight years. In our opinion, the criminal machinery set into motion by filing the complaint for the alleged incident which had taken place eight years ago, that act itself was nothing but a sheer misuse and abuse of the process of the court."

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15. In the case of Sheila Sebastian v. R. Jawaharraj and Another reported in (2018) 7 SCC 581, it is observed as under:-

"19. A close scrutiny of the aforesaid provisions makes it clear that, Section 463 defines the offence of forgery, while Section 464 substantiates the same by providing an answer as to when a false document could be said to have been made for the purpose of committing an offence of forgery under Section 463, IPC. Therefore, we can safely deduce that Section 464 defines one of the ingredients of forgery i.e., making of a false document. Further, Section 465 provides punishment for the commission of the offence of forgery. In order to sustain a conviction under Section 465, first it has to be proved that forgery was committed under Section 463, implying that ingredients under Section 464 should also be satisfied. Therefore unless and untill ingredients under Section 463 are satisfied a person cannot be convicted under Section 465 by solely relying on the ingredients of Section 464, as the offence of forgery would remain incomplete.

20. The key to unfold the present dispute lies in understanding Explanation 2 as given in Section 464 of IPC.

As Collin J., puts it precisely in Dickins v. Gill, (1896) 2 QB 310, a case dealing with the possession and making of fictitious stamp wherein he stated that "to make", in itself involves conscious act on the part of the maker. Therefore, Page 24 of 30 Downloaded on : Wed Oct 18 20:31:24 IST 2023 NEUTRAL CITATION R/CR.MA/17592/2020 JUDGMENT DATED: 11/10/2023 undefined an offence of forgery cannot lie against a person who has not created it or signed it.

21. It is observed in the case Md. Ibrahim and Ors. vs. State of Bihar and Anr., (2009) 8 SCC 751 that-

"14. .. a person is said to have made a `false document', if

(i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses."

22. In Md. Ibrahim (supra), this Court had the occasion to examine forgery of a document purporting to be a valuable security (Section 467, IPC) and using of forged document as genuine (Section 471, IPC). While considering the basic ingredients of both the offences,this Court observed that to attract the offence of forgery as defined under Section 463, IPC depends upon creation of a document as defined under Section 464, IPC. It is further observed that mere execution of a sale deed by claiming that property being sold was executant's property, did not amount to commission of offences punishable under Sections 467 and 471, IPC even if title of property did not vest in the executant.

23. The Court in Md. Ibrahim (supra) observed that:

"16. .......There is a fundamental difference between a person executing a sale deed claiming that the property Page 25 of 30 Downloaded on : Wed Oct 18 20:31:24 IST 2023 NEUTRAL CITATION R/CR.MA/17592/2020 JUDGMENT DATED: 11/10/2023 undefined conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of `false documents', it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed.

17. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted."

24. In Mir Nagvi Askari vs. Central Bureau of Investigation, Page 26 of 30 Downloaded on : Wed Oct 18 20:31:24 IST 2023 NEUTRAL CITATION R/CR.MA/17592/2020 JUDGMENT DATED: 11/10/2023 undefined (2009) 15 SCC 643, this Court, after analysing the facts of that case, came to observe as follows:

"164. A person is said to make a false document or record if he satisfies one of the three conditions as noticed hereinbefore and provided for under the said section. The first condition being that the document has been falsified with the intention of causing it to be believed that such document has been made by a person, by whom the person falsifying the document knows that it was not made. Clearly the documents in question in the present case, even if it be assumed to have been made dishonestly or fraudulently, had not been made with the intention of causing it to be believed that they were made by or under the authority of someone else. The second criteria of the section deals with a case where a person without lawful authority alters a document after it has been made. There has been no allegation of alteration of the voucher in question after they have been made. Therefore, in our opinion the second criteria of the said section is also not applicable to the present case. The third and final condition of Section 464 deals with a document, signed by a person who due to his mental capacity does not know the contents of the documents which were made i.e. because of intoxication or unsoundness of mind, etc. Such is also not the case before us. Indisputably therefore the accused before us could not have been convicted with the making of a false document.

25. Keeping in view the strict interpretation of penal statute Page 27 of 30 Downloaded on : Wed Oct 18 20:31:24 IST 2023 NEUTRAL CITATION R/CR.MA/17592/2020 JUDGMENT DATED: 11/10/2023 undefined i.e., referring to rule of interpretation wherein natural inferences are preferred, we observe that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made. As Explanation 2 to Section 464 further clarifies that, for constituting an offence under Section 464 it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery.

26. The definition of "false document" is a part of the definition of "forgery". Both must be read together. 'Forgery' and 'Fraud' are essentially matters of evidence which could be proved as a fact by direct evidence or by inferences drawn from proved facts. In the case in hand, there is no finding recorded by the trial Court that the respondents have made any false document or part of the document/record to execute mortgage deed under the guise of that 'false document'. Hence, neither respondent no.1 nor respondent no.2 can be held as makers of the forged documents. It is the imposter who can be said to have made the false document by committing forgery. In such an event the trial court as well as appellate court misguided themselves by convicting the accused. Therefore, the High Court has rightly acquitted the accused based on the settled legal position and we find no reason to interfere with the same.

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27. A reasonable doubt has already been thoroughly explained in the case of Latesh @ Dadu Baburao Karlekar Versus The State of Maharashtra, (2018) 3 SCC 66 wherein 'reasonable doubt' has been enunciated by this Court as "a mean between excessive caution and excessive indifference to a doubt, further it has been elaborated that reasonable doubt must be a practical one and not an abstract theoretical hypothesis."

28. In this case at hand, the imposter has not been found or investigated into by the concerned officer. Nothing has been spilled on the relationship between the imposter and respondent no.1. Law is well settled with regard to the fact that however strong the suspicion may be, it cannot take the place of proof. Strong suspicion, coincidence, grave doubt cannot take the place of proof. Always a duty is cast upon the Courts to ensure that suspicion does not take place of the legal proof. In this case, the trial Court as well as the appellate Court carried away by the fact that accused is the beneficiary or the executant of the mortgage deed, where the prosecution miserably failed to prove the first transaction i.e PoA as a fraudulent and forged transaction. The standard of proof in a criminal trial is proof beyond reasonable doubt because the right to personal liberty of a citizen can never be taken away by the standard of preponderance of probability."

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16. Considering these judgements, I am of the opinion that prima facie no offence is made out against present petitioners of all these petitions. Considering the material available on the record and ratio laid down in the case of Bhajan Lal and Inder Mohan Goswami (supra), this is a fit case wherein this Court should exercise powers under Section 482 of Criminal Procedure Code to prevent abuse of process of law.

Considering factual aspects of present case, no offence is made out against present petitioners, therefore, all these petitions are required to be allowed.

17. In view of above all these petitions are allowed. The impugned complaint being C.R.No.I-160 of 2015 lodged with Kosamba Police Station, Surat (Rural), and all consequential proceedings arising therefrom are quashed and set aside so far as present petitioners are concerned. Rule is made absolute to above extent.

18. It is clarified that this Court has not expressed any opinion regarding the allegations made against other accused persons, which can be investigated and appropriate proceedings can be taken out against those accused persons.

Sd/-

(SANDEEP N. BHATT,J) R.S. MALEK Page 30 of 30 Downloaded on : Wed Oct 18 20:31:24 IST 2023