Gujarat High Court
Kanubhai Ambalal Patel vs State Of Gujarat on 28 July, 2025
NEUTRAL CITATION
R/CR.RA/198/2025 JUDGMENT DATED: 28/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 198 of 2025
With
CRIMINAL MISC.APPLICATION (FOR JOINING PARTY) NO. 1 of 2025
In R/CRIMINAL REVISION APPLICATION NO. 198 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE L. S. PIRZADA
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Approved for Reporting Yes No
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KANUBHAI AMBALAL PATEL
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR EKANT G AHUJA(5323) for the Applicant(s) No. 1
MR HRIDAY BUCH for the respondent No.2
MS.JYOTI BHATT for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE L. S. PIRZADA
Date : 28/07/2025
ORAL JUDGMENT
1. Rule. Learned A.P.P waives service of Rule on behalf of the respondent - State.
2. The present revision application has been preferred by Page 1 of 13 Uploaded by MR.HIMAL.R. TRIVEDI(HCD0071) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 22:30:13 IST 2025 NEUTRAL CITATION R/CR.RA/198/2025 JUDGMENT DATED: 28/07/2025 undefined the present petitioner original accused under Section 438 read with Section 442 of Bharatiya Nagarik Suraksha Sanhita, 2023 (in short "BNSS" 2023) directed against the order passed by the learned Additional Chief Judicial Magistrate, Mangrol, Surat in Criminal Case No.3638/2021 rejecting the discharge application of the present petitioner - original accused dated 28.08.2024.
3. Short facts of the prosecution in nutshell is one FIR has been registered before the Kosamba Police Station, Dist. Surat for the offence punishable under Section 467, 468 and 471 of the Indian Penal Code against the present applicant accused. It is the case of the prosecution that original complainant is permanently residing with his family at Delhi and they have land at village Shiyalaj, Taluka - Mangrol, Dist, Surat bearing survey No.217 and survey No. 255/2, 255/3 and they have purchased the said land from the original owner Sara wife of Kalu Asrfi resident of Siyalaja village by executing registered Page 2 of 13 Uploaded by MR.HIMAL.R. TRIVEDI(HCD0071) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 22:30:13 IST 2025 NEUTRAL CITATION R/CR.RA/198/2025 JUDGMENT DATED: 28/07/2025 undefined sale deed on 21.07.1982 and pursuant to this sale deed entry was confirmed mutated in the revenue record on 03.03.1987 and as the original complainant is residing at Delhi in the year 2006 when they return to Surat subsequently they get the copy of the revenue extract 7/12 from the Mamlatdar Office, Mangrol at that time he came to know in the said above mentioned land in the revenue record, the name Singarasinh Jagarsinh, No.2 Mansikhsinh Jagarsinh, No.3 Balvidarsing Jagarsinh has been shown as an occupier and the name is mutated on the basis of registered sale deed and subsequently complainant came to know that one Mr.Kanubhai Ambalal Patel president of Surat has sold the said land by forging the signature of the complainant and by creating the forge power of attorney on 28.10.1996 and using the forge power of attorney execute sale deed in favor of these three persons and the said sale deed was executed before the Sub-Registrar Office, Mangrol on 04.07.1997 making this type of allegation the complainant came to be filed by the original complainant Page 3 of 13 Uploaded by MR.HIMAL.R. TRIVEDI(HCD0071) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 22:30:13 IST 2025 NEUTRAL CITATION R/CR.RA/198/2025 JUDGMENT DATED: 28/07/2025 undefined on 27.09.2010, pursuant to the registration of the FIR the investigation has been carried out by the Investigation Officer and Investigation Officer after completion of investigation filed a charge sheet against the present petitioner - accused and same was registered as Criminal Case No.1353/2017 and the said Criminal Case No.2363/2021 and the said application and the said case the present petitioner accused under Section 239 of the Criminal Procedure Code discharging the Exhibit-15 and same was rejected by the learned trial Court on 28.08.2024. Being aggrieved and dissatisfied, by the said order the present revision application has been preferred.
4. Heard learned advocate Mr.Ekant Ahuja for the applicant. It is submitted that the transaction enter into by the petitioner in connection with disputed land is a genuine transaction in the course of his business as a land broker and the sale deed has been executed in the year 1996 and thereafter a period of 10 years as per the case of the complainant he came to inquire Page 4 of 13 Uploaded by MR.HIMAL.R. TRIVEDI(HCD0071) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 22:30:13 IST 2025 NEUTRAL CITATION R/CR.RA/198/2025 JUDGMENT DATED: 28/07/2025 undefined about the land, came to know about the execution of the sale deed. Further it is submitted that as per the case of the prosecution that the complainant came into contact with Mr. Rajanibhai S. Patel, who has been shown in the Colum No.2 of the charge sheet has already expired, who was doing business of steel and who contacted the present petitioner and explained to him that he had good piece of land will fetch the profit. Further, it is submitted that even during the investigation the statement of the advocate cum notary has been recorded as per his statement of power of attorney was executed that further statement on record of the Executive Magistrate in front of whom the power of attorney was executed will demonstrate the power of attorney executed. Further, it is submitted that the original power of attorney has not been ceased by the Investigation Officer and in absence of the original power of attorney offence under Section 467 and 468 of the Indian Penal Code cannot be established against the present petitioner and it is submitted that the order passed by the Page 5 of 13 Uploaded by MR.HIMAL.R. TRIVEDI(HCD0071) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 22:30:13 IST 2025 NEUTRAL CITATION R/CR.RA/198/2025 JUDGMENT DATED: 28/07/2025 undefined learned trial Court is illegal and perverse more sufficient material has been produced by the investigation in the charge sheet papers to frame the charge allowing the revision application.
5. Further in support of his argument learned advocate for the applicant is relying upon the judgment of the Hon'ble Apex Court in the case of C. Kamalakkannan Vs State of Tamilnadu reported in (2025) 4 SCC page 487 and submitted that the when the original document has not been produced then in absence of this conviction cannot be sustained. Further relying upon the judgment of the Hon'ble Apex Court in the case of Mohammad Ibrahim and others Vs. State of Bihar (2009) 8 SCC page 751 1950 Criminal Law Journal and submitted that the present revision application is required to be allowed.
6. On the other hand, learned A.P.P. Ms. Jyoti Bhatt for the Page 6 of 13 Uploaded by MR.HIMAL.R. TRIVEDI(HCD0071) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 22:30:13 IST 2025 NEUTRAL CITATION R/CR.RA/198/2025 JUDGMENT DATED: 28/07/2025 undefined respondent has vehemently opposed the present revision application and submitted that there is no illegality has been committed by the learned trial Court, hence the present revision application is required to be dismissed.
7. Learned advocate Mr.Hriday Buch for the respondent No.2. It is submitted that the order passed by the learned trial Court is just and proper, there is sufficient material has been produced along with the charge sheet and rightly rejected the discharge application, hence considering this, present revision application is required to be dismissed.
8. Considering the arguments advance by the learned advocate for the respective parties. At the short facts of the case has already been narrated above.
9. While deciding the revision application is concerned there is Hon'ble Apex Court in the case of State of Gujarat Vs Page 7 of 13 Uploaded by MR.HIMAL.R. TRIVEDI(HCD0071) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 22:30:13 IST 2025 NEUTRAL CITATION R/CR.RA/198/2025 JUDGMENT DATED: 28/07/2025 undefined Dilipsinh Kishorsinh Rao reported in 2023 (17) SCC 688 is profitable in the said judgment in paragraph No.
10.It is settled principle of law that at the stage of considering an application for discharge the court must proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate said material in order to determine whether the facts emerging from the material taken on its face value, disclose the existence of the ingredients necessary of the offence alleged. This Court in State of Tamil Nadu Vs. N. Suresh Rajan And Others (2014) 11 SCC 709 adverting to the earlier propositions of law laid down on this subject has held:
"29. We have bestowed our consideration to the rival submissions and the submissions made by Mr. Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not Page 8 of 13 Uploaded by MR.HIMAL.R. TRIVEDI(HCD0071) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 22:30:13 IST 2025 NEUTRAL CITATION R/CR.RA/198/2025 JUDGMENT DATED: 28/07/2025 undefined permit a mini trial at this stage."
11. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged. The expression "the record of the case" used in Section 227 Cr.P.C. is to be understood as the documents and articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. The submission of the accused is to be confined to the material produced by the investigating agency.
12. The primary consideration at the stage of framing of charge is the test of existence of a prima-facie case, and at this stage, the probative value of materials on record need not be gone into. This Court by referring to its earlier decisions in the State of Maharashtra Vs. Som Nath Thapa (1996) 4 SCC 659 and the State of MP Vs. Mohan Lal Soni (2000) 6 SCC 338 has held the nature of evaluation to be made by the court at the stage of framing of the charge is to test the existence of prima-facie case. It is also held at the stage of framing of charge, the court has to form a presumptive opinion to the existence of factual ingredients constituting the offence alleged and it is not expected to go deep into probative value of the material on record and to check whether the material on record would certainly lead to conviction at the conclusion of trial.
So, considering this pronouncement of Hon'ble Apex Court at the time of deciding the discharge application and at the stage of framing of charge the test of existence of prima facie case is required to be considered and at this stage probative value of the material on record did not require to be gone into and catena of judgment of the Hon'ble Apex Court held that at the time of framing the charge. Court has not to hold a mini trial Page 9 of 13 Uploaded by MR.HIMAL.R. TRIVEDI(HCD0071) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 22:30:13 IST 2025 NEUTRAL CITATION R/CR.RA/198/2025 JUDGMENT DATED: 28/07/2025 undefined but Court has to consider whether or not grounds are sufficient to proceed against the accused on the basis of the charge sheet material. It is not the look out of the Court whether the said material produced along with the charge sheet is resulted into acquittal of the case or it will bring home the conviction of the accused. Considering the above aspect so far as the short facts of the case has already been narrated above. Now require to consider the statement of one Mr. Rameshchandra Bhemjibhai Parmar he was at the relevant time working as Executive Magistrate at Collector Office, Surat since in the year 1996-1997 and in his statement before the Police. It is a signed statement, he stated that the power of attorney on with the date which has been mentioned at 28.06.1996 that the original power of attorney was bring by advocate Mr. K. S. Dhimar and he was an advocate, he came with the original power of attorney in his office on 07.11.1997 and he has put his sign and put his seal on power of attorney as before me and Mr. Dhimar has given the introduction of other person as Page 10 of 13 Uploaded by MR.HIMAL.R. TRIVEDI(HCD0071) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 22:30:13 IST 2025 NEUTRAL CITATION R/CR.RA/198/2025 JUDGMENT DATED: 28/07/2025 undefined Shivkumar Laxminarayan Gandhi. Further he stated that he has put his signature and seal on 07.11.1997 as the sale deed was executed on 04.07.1997. So before execution of the power of attorney the registered sale deed was already executed on the basis of the power of attorney from the copy of the general power of attorney by the present petitioner. It is evident that it has been Mr. R.B. Parmar put his signature on 07.11.1997. Further it is also evident from the material produced along with the charge sheet that present petitioner that is Kanubhai Ambalal Patel as a power of attorney holder of Shivkumar Laxminarayan Gandhi had executed register sale deed for the land of the original complainant in favor of Singarasinh Jagarsinh, No.2 Mansikhsinh Jagarsinh, No.3 Balvidarsing Jagarsinh on 04.07.1997. So before power of attorney has been executed the said sale deed executed by the present applicant as a power of attorney holder of the original land. So Considering this there is a strong suspension against the present petitioner that he has forged the power of attorney Page 11 of 13 Uploaded by MR.HIMAL.R. TRIVEDI(HCD0071) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 22:30:13 IST 2025 NEUTRAL CITATION R/CR.RA/198/2025 JUDGMENT DATED: 28/07/2025 undefined and pursuant to this forge power of attorney, the sale deed has been executed of the land belongs to the original complainant.
10. Further, learned advocate for the petitioner relying upon the authorities of Hon'ble Apex Court and other regarding the original power of attorney has not been ceased by the Investigation Officer, so one original document has not been ceased by the Investigation Officer. It has not been sent to the DFSL for getting an opinion of the experts so in absence of that the charge under Sections 467, 468 and 471 of the Indian Penal Code cannot be proved the prosecution but as authorities on relying upon by the learned advocate for the petitioner. It has been considered by the Hon'ble Apex Court that after the evidence has been adduced by the parties here in this case and concerned as discussion above at this stage. Court has not to hold a mini trial or marshalling the evidence but only to consider whether there is sufficient evidence to frame the charge against the present applicant accused or not. Further, I Page 12 of 13 Uploaded by MR.HIMAL.R. TRIVEDI(HCD0071) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 22:30:13 IST 2025 NEUTRAL CITATION R/CR.RA/198/2025 JUDGMENT DATED: 28/07/2025 undefined have perused the findings recorded by the discharge application, the findings recorded by the learned trial Court is just and proper, does not require any interference. I do not find that the order passed by the learned trial Court is excessive, illegal or perverse or against the settled principle of law, I do not find any merits in present revision application.
11. The present revision application No.198/2025, is hereby, rejected and the order passed by the Additional Chief Judicial Magistrate, Mangrol, Surat in Criminal Case N.3638/2021 rejecting the discharge application vide Exhibit-15 dated 28.08.2024, is hereby, confirmed. Rule is discharged.
(L. S. PIRZADA, J) HRT Page 13 of 13 Uploaded by MR.HIMAL.R. TRIVEDI(HCD0071) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 22:30:13 IST 2025