Bhupatbhai Nanjibhai Gajera vs State Of Gujarat
2021 Latest Caselaw 12676 Guj

R/SCR.A/5613/2018                             CAV JUDGMENT DATED: 27/08/2021



          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
      R/SPECIAL CRIMINAL APPLICATION NO. 5613 of 2018
                            With
    CRIMINAL MISC.APPLICATION (FOR STAY) NO. 1 of 2018
     In R/SPECIAL CRIMINAL APPLICATION NO. 5613 of 2018

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE B.N. KARIA
=====================================================

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

2 To be referred to the Reporter or not ? YES

3 Whether their Lordships wish to see the NO fair copy of the judgment ?

4 Whether this case involves a NO substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

===================================================== BHUPATBHAI NANJIBHAI GAJERA Versus STATE OF GUJARAT ===================================================== Appearance:

MR. BHAUMIK DHOLARIYA(7009) for the Applicant(s) No. 1,2,3,4,5

MS MOXA THAKKAR, ADDITIONAL PUBLIC PROSECUTOR(2) for

===================================================== CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

Date : 27/08/2021 CAV JUDGMENT

1. By preferring this petition petitioners have

challenged the order dated 18th January, 2018

passed by the learned Additional Chief

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Metropolitan Magistrate, Court No.12,

Ahmedabad in Inquiry Case No.7 of 2012,

issuing summons to the accused persons and

others observing that prima facie offence is

made out by the petitioners.

2. Heard learned advocate Mr. Bhaumik Dholariya

for the petitioners, learned APP Ms. Moxa

Thakkar for the respondent-State and learned

advocate Mr. J.A. Adeshra for the respondent

No.2.

3. The case of the prosecution in brief can be

summarized as under :-

4. On 29th March, 2012, the opponent no.2 /

complainant herein filed a private complaint

before the learned Metropolitan Magistrate,

Ahmedabad against the petitioners herein and

others for the offences punishable under

Sections 406, 420, 465, 467, 468, 471 and

120(B) of the Indian Penal Code, 1860 (for

brevity "IPC") which was registered as

Inquiry Case No.7 of 2012. Initially, the

learned Trial Court ordered for Police

Inquiry. Thereafter, vide order dated 18th

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January, 2018, the learned Additional Chief

Metropolitan Magistrate Court No.12,

Ahmedabad issued summons to all the accused

including the petitioners herein which came

to be served upon the petitioners in April,

2018. Inquiry Case No.7 of 2012 thereafter

culminated into Criminal Case No.5942 of

2018. The learned Trial Court made certain

observations against the petitioners that

prima facie offence is made out by the

respondent No.2- original complainant. Hence,

the petitioners have approached this Court

under Articles 14, 226 and 227 of the

Constitution of India as well as under

Section 482 of the Code of Criminal

Procedure, 1973 with a prayer to quash and

set aside the Criminal Case No.5942 of 2018

(Inquiry Case No.7 of 2012) and the order

dated 18th January, 2018 passed by the learned

Additional Chief Metropolitan Magistrate

Court No.12, Ahmedabad qua the petitioners

herein.

5. Learned advocate Mr. Bhaumik Dholariya

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appearing for the petitioners submitted that

the petitioners are falsely implicated in the

complaint and it is a clear abuse of process

of the law. It is further submitted that the

Inquiry Case No.7 of 2012 is now culminated

into Criminal Case No.5942 of 2018. It is

further submitted that the land in question

was purchased by the present petitioners and

they are the bonafide purchasers. There is no

offence of forgery as defined under Section

463 read with Section 464 of the Indian Penal

Code made out against the petitioners. It is

further submitted that the land was purchased

by the petitioner Nos.1 to 4 in October-2010

from Bairajba Jivaji through registered sale

deed. The petitioner No.5 is a witness to the

said transaction. It is further submitted

that the petitioners have nothing to do with

the alleged offence of forgery committed by

Bairajba Jivaji in the year 1997 as they were

not even aware about the said allegations at

the time of purchase of the land in question.

The petitioners are involved in the alleged

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offence with malafide intention to apply

pressure tecticks and to settle the dispute

with the opponent No.2/complainant. It is

further submitted that no offence of forgery

much less offence punishable under Sections

465, 467, 468 and 471 of the Indian Penal

code is constituted against the petitioners.

It is further submitted that the petitioners

have never induced the complainant by making

any false representation or no offence of

criminal breach of trust or cheating has been

made by the petitioners. It is further

submitted that alleged forged pedhinama was

prepared by Bairajba Jivaji in the year 1997,

based on which, entry was mutated. That

petitioners were never in picture at that

time and in October-2010, through registered

sale deed, petitioner nos.1 to 4 have

purchased the subject land, and therefore, no

offence of criminal conspiracy can be said to

have been committed. It is further submitted

that the dispute is regarding the right title

and interest in the subject land. That the

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dispute can be decided only by the Civil

Court in respect of interest right or title.

That Regular Civil Suit No.719 of 2010 was

already filed by respondent No.2 and others,

heirs of Nanduba Jivaji and others before the

learned Additional Civil Judge Ahmedabad

(Rural) and vide order dated 25 th April, 2016,

injunction for interim application Exhibit-5

was rejected by the Civil Court and no appeal

was preferred by the respondent no.2. That

the dispute is predominantly civil in nature

and however it has been given criminal color

by the respondent No.2. It is further

submitted that the impugned complaint was

filed after more than 15 years for the

alleged forgery and cheating. The petitioner

nos.1 to 4 have purchased the subject land in

October, 2010 and the impugned complaint was

filed on 29th March, 2012 and petitioners were

served with summons in April, 2018. That no

justified explanation for delay was given by

the respondent no.2 in his complaint which

also suggests that complaint was filed with

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malafide intention. Hence it was requested by

learned advocate appearing for the

petitioners to quash and set aside the

Criminal Case No. 5942 of 2018 (Inquiry Case

No.7 of 2012) and order dated 18th January,

2018 passed by the learned Additional Chief

Metropolitan Magistrate Court No.12,

Ahmedabad qua the petitioners.

6. In support of the arguments learned advocate

appearing for the petitioners has relied upon

the following judgments :-

1. Prabhu Chawla Versus State of Rajasthan

and Another reported in 2016 (16) SCC 30

(Three Judges Bench Judgment);

2. Sheila Sebastian Versus R. Jawaharaj and

another reported in 2018 (7) SCC 581;

3. Mohammed Ibrahim and others Versus State

of Bihar and another, reported in 2009 (8)

SCC 751;

4. Prakash Ramchandra Barot Versus State of

Gujarat, reported in 2011 (3) GLH 211.

7. Per contra learned advocate appearing for the

respondent No.2 has strongly objected the

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submissions made by the petitioners and

submitted that detailed order was passed by

the learned Additional Metropolitan

Magistrate, Court No.12 observing that prima-

facie offence under section 120(B) of Indian

Penal Code was established by the

complainant, and therefore, summons was

issued for the offence punishable under

section 406, 420, 465, 467, 468, 471, 120(B)

of Indian Penal Code by an order dated 18th

January, 2018. It is further submitted that

before execution of registered sale deed

dated 25th November, 2010, a public notice for

issuance of title clearance certificate was

issued in daily newspaper "Divyabhaskar" on

16th August, 2010 through an advocate Mr.

Bharat K Patel in respect of agricultural

land bearing survey/block No.74, 162 and 163.

It is further submitted that another public

notice was also issued in the daily newspaper

namely "Divyabhaskar" dated 25th August, 2010

through an advocate Mr. Bhavesh B. Dave, and

at that time, legal heirs of Nanduba claimed

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their rights and shares as the owner of the

subject land. It is further submitted that

written objections dated 28th August, 2010

were sent by the legal heirs of the deceased

Nanduba through learned advocate Mr. Bharat

K. Patel in respect of the subject land. It

is further submitted that though no title

clearance certificate was issued in respect

of the subject land, the accused no.4 to 7 of

the original complainant of the complaint,

who were fully aware about the facts, entered

into transaction of purchasing the land. It

is further submitted that accused no.1, in

collusion with the other accused, have sold

(petitioner Nos.1 to 4) through registered

sale deed. It is further submitted that after

execution of registered sale deed on 28th

October, 2010, 15th October, 2010, another

public notice for issuance of title clearance

certificate was issued in the daily newspaper

"Sandesh" on 23rd March, 2011 through Mr.

Mahesh V. Pandit an advocate. That he is the

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neighbor of the petitioner no.1 and has

signed as witness. However, he was fully

aware about the objections and public

advertisement as per the earlier public

notice for issuance of title clearance

certificate. That collusion of the

petitioners with the other co-accused is

prima-facie established. That accused nos.2

and 8 of the complaint were aware about the

facts, however, they have signed as witnesses

in the sale deed. It is further submitted

that no will was executed by Maniba, however,

it is falsely stated that she had executed a

will dated 20th July, 1998. Entry no.3765

dated 27th September, 1997 is made in Village

Form No.6 and name of Maniba and Bairajba

were entered in the revenue record as legal

heirs of Jivaji Vajesing Vaghela. It is

further submitted that in Village Form

No.7/12, name of deceased Nanduba was shown

and there is nothing on record to show that

there are no legal heirs of Nanduba, the sale

deed could not have been executed by

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excluding the names of legal heirs of

Nanduba. That the present petitioners have

not filed any proceedings against the

Bairajba after execution of sale deed which

is an additional factor to show that there is

collusion between the accused named in the

original complaint. It is further submitted

that names of legal heirs of Nanduba were

entered in the revenue record after execution

of registered sale deeds dated 25 th November,

2010 which also shows that earlier panchnama

was wrongly prepared. That while coming to

know about the execution of sale deed in

October, 2010 an application was submitted by

the complainant on 5th February 2011 to Kanbha

Police Station. Thereafter, another

application was also submitted to DSP

Ahmedabad (Rural) on 18th February, 2011 and

other authorities. That private criminal

complaint was filed before the Metropolitan

Magistrate Court No.12 Ahmedabad on 29 th

March, 2012, and therefore, it is not correct

to say that complainant has set into motion

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in criminal machinery after 15 years. That

complainant has made out prima-facie case

against the accused persons which would

require leading of evidence and criminal

complaint cannot be quashed at threshold in

exercise of powers under Section 482 of the

Criminal Procedure Code. It is further

submitted that it is a fit case to permit the

trial Court to proceed and matter be decided

on merits, and therefore, it is requested

that as the petition is devoid of merits, it

should be dismissed in the interest of

justice. In support of his arguments, learned

advocate appearing of the respondent No.2 has

relied upon the judgment reported in (2010)

11 SCC 226.

8. Learned APP has submitted that report of the

police officer is placed on record and the

same may be considered by the Court. It is

further submitted that at this juncture the

prayer made by the petitioners cannot be

granted. Learned APP has further submitted in

her arguments that from the complaint itself,

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offence as alleged against the petitioners,

is prima-facie disclosed by the prosecution,

and therefore, this Court may not interfere

with the investigation into the case and

permit the investigation into the offence

alleged to be committed. It is further

submitted that once an offence is disclosed,

the investigation into the offence must

necessarily follow in the interest of

justice. It is further submitted that the

Court has mainly to take into consideration

the complaint or the FIR and the Court may in

appropriate cases, take into consideration

the relevant facts and circumstances of the

case. It is further submitted that if for a

consideration for the relevant materials, the

Court is satisfied that the offence is

disclosed the Court will normally not

interfere with the investigation into the

offence and will generally allow the

investigation into the offence to be

completed for collecting materials for

proving the offence. It is further submitted

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that on account of the order passed by this

Court on 10.08.2018, the proceedings of

Criminal Case No.5942 of 2018 qua the

petitioners before the learned Additional

Chief Metropolitan Magistrate Court No.12,

Ahmedabad is stayed and investigating agency

is not in a position to carry out the

investigation against the petitioners

however, prima facie case is made out by the

prosecution and hence it is requested to

dismiss the petition.

9. Having heard learned advocates appearing for

the respective parties as well as learned

APP, it appears from the complaint lodged by

the respondent No.2 against the petitioners

herein and others that Bairajba Jivaji sold

the subject land to the petitioner Nos. 1 to

4 in October - 2010 through registered sale

deed wherein petitioner No.5 was shown as a

witness to the said transactions. It is not

in dispute raised by the complainant that no

registered sale deed was executed by Bairajba

Jivaji or there was no signature of Bairajba

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Jivaji. It was the case for the respondent

No.2 that even though the respondent No.2 and

others heirs of Nanduba are the legal heirs

of Jivaji Vajesang and they had share in the

subject land, Bairajba sold the said land to

the petitioner Nos.1 to 4. Further

allegations were made against the Bairajba

that she had submitted false pedhinama for

mutation of heirship entry in the year 1997.

From the averments made in the complaint, it

appears that the petitioners have nothing to

do with the alleged offence for forgery

committed by Bairajba Jivaji in the year 1997

as they were not a party or aware about the

said allegations when they purchased the

subject land in 2010. If we consider the

alleged offence punishable under Section 406

and 420 of Criminal Procedure Code i.e.

criminal breach of trust and cheat

respectively, it is nowhere stated in the

complaint by the respondent No.2 that any

false representation was made to respondent

No.2 or he was induced by any false

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representation by the petitioners. The

alleged cheating, if any, there complete

absence of ingredients in the petition. If we

consider the offence of criminal conspiracy,

as alleged in the complaint, false pedhinama

was prepared by Bairajba Jivaji in the year

1997, based upon which, heirship entry was

mutated. From the allegations made in the

complaint, it appears that present

petitioners were not in a picture when the

alleged pedhinama was prepared in the year

1997. The subject land was purchased by the

present petitioners No.1 to 4 through

registered sale deed in 2010 and therefore,

it cannot be said that any criminal

conspiracy is hatched by the present

petitioners. Signature of Bairajba Jivaji in

the sale deed executed in favour of the

petitioners No.1 to 4 was not disputed by the

respondent No.2 in his complaint. The main

grievance raised in the complaint pertains

for title, interest and rights in respect of

the subject land and executing the sale deed

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by Bairajba Jivaji in favour of the

petitioner Nos.1 to 4. Raising such a

grievance in the complaint will not render

the registered sale deed as false document

within a meaning of Section 464 of Indian

Penal Code.

10. Hon'ble Apex Court in the case of Sheila

Sebastian Versus R. Jawaharaj and another

reported in 2018 (7) SCC 581 has discussed

this issue of making a false document and

forgery, referring certain other judgments.

In this case, the Hon'ble Apex Court has made

close scrutiny of Section 463 and 464 of

Indian Penal code which provides 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

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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, 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-

            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

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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:

There is a fundamental difference between a person executing a sale deed claiming that the property 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.

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

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(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, (2009) 15 SCC 643, this Court, after analysing the facts of that case, came to observe as follows:

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

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before us could not have been convicted with the making of a false document.

25. Keeping in view the strict interpretation of penal statute 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."

11. It further appears from the plain reading

of the complaint that the dispute is with

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respect to the right, title and interest in

the subject land. Assuming for a moment that

both the parties have their rights, title or

interest in the subject land, then such title

and rights can be decided only by the

competent Civil Court. Dispute in the present

case in respect of the rights, title and

interest appears to be purely civil in

nature. Remedy for the grievance of the

complainant is to get set aside the

registered sale deed executed by Bairajba and

others in favour of the petitioners No. 1 to

4, for which the respondent No.2/complainant

has already filed Regular Civil Suit No.719

of 2010 before the learned Additional Civil

Judge, Ahmedabad (Rural) and vide order dated

25.04.2016 interim injunction application

(Exh.5) was rejected by the Civil Court. The

complainant has tried by giving criminal

color of the civil dispute in the present

case. Further, it appears that alleged

pedhinama for heirship entry in the year 1997

was purchased by Bairajba Jivaji. The lands

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bearing block nos.74, 134, 162, 163, 164 and

169 of mouje Hathijan Tal. Dascroi, District

Ahmedabad were originally belongs to deceased

Jivaji Vajesang, who passed away on

01.05.1997. Heirship entry No.3765 was

entered in the Village Form No.6 by which

name of Maniba Jivaji (widow of Jivaji) and

Bairajba Jivaji (daughter of Jivaji) came to

be mutated in the Block Nos.162, 163, 164 and

169 on 30.04.1998. It further appears that

block Nos. 74 and 134 were mixed to be

mentioned in heirship entry No.3765 and

therefore, separate heirship entry No.3847

came to be recorded on 1.1.1999 and name of

Maniba Jivaji and Bairajba Jivaji were

mutated in block nos. 74 and 134. The said

entry was certified on 16.03.1999. Maniba

Jivaji executed a will on 14/20 May, 1998 in

favour of Bairajba Jivaji. The petitioner

Nos.1 to 4 purchased the land on 15.10.2010

and 18.10.2010 from Bairajba Jivaji.

Petitioner no.5 has signed as witness in the

registered sale deed in favour of the

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petitioner Nos.1 to 4 in respect of block

Nos. 74 and 134. Another sale deed was also

similarly registered for block no. 162 in

favour of the petitioner nos.1 to 4 on

28.10.2010 wherein also petitioner No.5 has

signed as witness in the said registered sale

deed. It also appears that various

proceedings are pending before the different

revenue authorities with respect to the

various entries of the subject land

particularly with respect to entry Nos.4912,

5021, 5022, 5024, 5025 and 5836. It also

appears that Bairajba Jivaji through her

advocate issued a public notice for title

clearance in the daily newspaper

"Divyabhaskar" on 17.08.2010. Respondent

No.2-opponent No.2 and others through their

advocates raised objections and issued notice

to the learned advocate of Bairajba Jivaji.

Opponent No.2 and others also issued a public

notice / caution in the daily newspaper

'Divyabhaskar' asking the public not to deal

with the property. It can never be said that

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petitioners were aware about the public

notice issued by the Bairajba Jivaji and

objections raised by the respondent No.2 and

published both notices. It also appears that

petitioner Nos.1 to 4 through their advocates

have also issued one public notice for title

clearance on 24.03.2011 in daily newspaper

'Sandesh'. It further appears that in Regular

Civil Suit No.719 of 2010 filed by the

respondent No.2 before the learned Civil

Judge, Ahmedabad (Rural), whereas petitioners

were not joined as a party. An application

for interim injunction was also filed by the

respondent No.2 in the civil suit with a

request to grant interim injunction in his

favour which was dismissed. Thereafter, in

view of sale of subject land, the respondent

No.2 filed amended interim injunction

application vide Exh.42 in Regular Civil Suit

No.719 of 2010 and joined the present

petitioner Nos.1 to 4 herein. The learned

Additional Civil Judge, Ahmedabad (Rural)

vide order dated 25.04.2016 rejected both the

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injunction applications of the plaintiff at

Exh.5 and Exh. 43 forthwith. As per the

submissions made by the learned advocates

appearing for the petitioners, plaintiff in

the suit have not challenged the order passed

by the learned Civil Judge, Ahmedabad

(Rural), dated 25.04.2016, before the higher

forum and said order has attained finality.

12. It is an undisputed fact that both the

sides are before the Civil Court since the

year 2010. Civil Court has already seized the

subject matter in the suit filed by the

respondent No.2. The entire dispute is with

regard to the right, title and interest over

the land of block Nos.74, 134 and 163

purchased by the petitioner Nos.1 to 4 by

registered sale deed in their favour from

Bairajba Jivaji. Who is the actual owner of

the land in question or there are two owners

of the land in question, Civil Court can only

answer after deciding the respective rights

of the parties. What is important is, as to

whether any offence said to have been

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committed even if the entire FIR is accepted

as it is. It is settled law that if the FIR

fails to disclose commission of any offence,

then it deserves to be quashed. Otherwise, it

amount to abuse of process of law. It is not

in dispute that the sale deed has been

executed by the Bairajba Jivaji with her

genuine signature. What is disputed right,

title and interest of the original owner to

execute the sale deed in favour of the

petitioner Nos.1 to 4. The dispute raised in

the complaint itself will not render the said

deed of the year 2010 as false documents

within the meaning of Section 464 of Indian

Penal Code so as to constitute offence

punishable under Sections 465, 467, 468 and

471 of Indian Penal Code as well as under

Sections 406 and 420 of Indian Penal Code.

The law in this regard is now very well

settled. The Hon'ble Supreme Court in the

case of Mohmad Ibrahim and Others versus

State of Bihar and others reported in 2010

(1) GLH 184, exhaustively explained as to

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what will constitute forgery. The ratio has

propounded by the Hon'ble Supreme Court in

the said case squarely applied in the present

case. Later on same view was taken by this

Court in case of Prakash Ramchandra Barot and

others Versus State of Gujarat and others

reported in (2011) 3 GLH 211. This Court

(Hon'ble Mr. Justice J.B. Pardiwala) in

paragraph Nos. 31 and 32 has observed as

under :-

"It is well settled that in order to constitute an offence of cheating, it must be shown that the accused had fraudulent or dishonest intention at the time of making the representation or promise and such a culpable intention right at the time of entering into an agreement cannot be presumed merely from his failure to keep the promise subsequently.

My prima facie examination satisfies me that the averments in the FIR if assume to be true, do not make out any offence under Sections 406, 420, 465, 467, 468, 471, 447, 186, 120B and 504 of IPC."

13. In order to attract the provisions of

Sections 413 and 420 of Code of Criminal

Procedure Code, 1973, the guilty intent, at

the time of making the promise is a

requirement and an essential ingredient

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thereto and subsequent failure to fulfill the

promise by itself would not attract the

provisions of Section 413 or Section 420.

Mens rea is one of the essential ingredients

of the offence of cheating under Section 420.

As a matter of fact Illustration (g) to

Section 415 makes the position clear enough

to indicate that mere failure to deliver in

breach of an agreement would not amount to

cheating but is liable only to a civil action

for breach of contract.

14. Learned advocate appearing for the

respondent No.2 has relied upon the judgment

of the 2010 (XI) SCC 226, wherein the Hon'ble

Apex Court in paragraph No.20 has observed in

the judgment as under :-

"Though the powers possessed by the High Court under Section 482 are wide, however, such power requires care/caution in its exercise. The interference must be on sound principles and the inherent power should not be exercised to stifle a legitimate prosecution. We make it clear that if the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of inherent powers under Section

482."

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15. In the case on hand, apart from specific

allegations about the transportation of

Jaggery for preparation of illicit distilled

liquor, prosecution had also placed reliance

on laboratory analysis report which mentioned

that the transported Jaggery was fit for

fermentation, producing alcohol unfit for

consumption. Under these circumstances,

Hon'ble Apex Court views whether the raw

material in existence would be sufficient for

holding the accused persons concerned guilty

or not has to be considered only at the time

of trial. It is further viewed that at the

time of framing the charge, it can be decided

whether prima facie case has been made out

showing the commission of offence and

involvement of the charged persons. The

judgment relied upon by the learned advocate

appearing for the respondent No.2 may not

assist because of the fixed facts of the

Hon'ble Apex Court.

16. In view of the matter, it appears that both

the sides are claiming their right in their

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own ways. So far as the title, right or

interest in the property is concerned, they

can be decided only by the competent Civil

Court and both the sides are already before

the Civil Court in Regular Civil Suit No.719

of 2010 since past ten years and the relevant

proceedings have also been undertaken, hence

continuation of such prosecution will

genuinely amount of gross abuse of process of

law.

17. The present case falls another categories

where accused complaint of harassment through

the court process. There is no total barred

on the exercise of the inherent powers where

abuse for the process of Court or other extra

ordinary situations exercised the Courts

jurisdiction. This Court has examined the

matter under its inherent powers. The present

case undoubtedly falls for exercising powers

of the High Court in accordance with Section

482 of the Code of Criminal Procedure, 1973.

Accordingly, this petition is allowed. The

impugned order passed by the learned

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Additional Chief Metropolitan Magistrate,

Court No.12, Ahmedabad (Rural) qua the

petitioners herein in Criminal Case No. 5942

of 2018 (Inquiry Case No.7 of 2012) dated 18 th

January, 2018 and consequent proceedings are

hereby quash and set aside.

18. Rule is made absolute.

(B.N. KARIA, J)

ORDER IN CRIMINAL MISC. APPLICATION (FOR STAY)

NO. 1 of 2018

In view of the order passed in main petition,

Criminal Misc. Application No.1 of 2018 filed

for stay does not survive and stands disposed of

accordingly.

(B.N. KARIA, J)

Pallavi