Sanjay Jerambhai Viramgama vs State Of Gujarat
2021 Latest Caselaw 17333 Guj

     R/SCR.A/4133/2020                             JUDGMENT DATED: 17/11/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CRIMINAL APPLICATION NO. 4133 of 2020

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE GITA GOPI
==========================================================

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

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

==========================================================
                         SANJAY JERAMBHAI VIRAMGAMA
                                    Versus
                              STATE OF GUJARAT
==========================================================
Appearance:
MR MUKESH KUMAR SUDARSHAN(10268) for the Applicant(s) No. 1
MS HETU M SUDARSHAN(10051) for the Applicant(s) No. 1
NARENDRA K AMIN(9506) for the Applicant(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2
MR PRANAV TRIVEDI, APP (2) for the Respondent(s) No. 1
==========================================================

    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                               Date : 17/11/2021

                               ORAL JUDGMENT

1. Rule. Learned APP waives service of notice of rule on behalf of the respondent-State.

2. The petitioner is before this Court under Article 226 and 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973, for quashing and setting aside the

R/SCR.A/4133/2020 JUDGMENT DATED: 17/11/2021

FIR being CR No.11193003201041 of 2020 registered with Amreli City Police Station, Amreli for offences punishable under Sections 193, 177, 260, 465, 467, 471, 472, 473, 474, 475, 484, 420, 120B and Section 470 of the Indian Penal Code and all the consequential proceedings initiated in pursuance thereof.

3. The petitioner states that he is not named in the FIR nor there are any allegations leveled against him to array him as an accused. The petitioner states that he is holding a power of attorney dated 28/06/2011 given to him by accused no.1 Valibhai Sulemanbhai Metar and states that the said power of attorney was notarized on 19/07/2011 and on the basis of power entrusted to him by accused Valibhai Sulemanbhai Metar, he is representing the cases pending before the revenue authority. He states that only role of the petitioner is to engage the lawyer and submit necessary replies on behalf of accused no.1 under his instruction. The petitioner has only represented accused no.1 in five cases before the revenue authority noted in the FIR. He states that he was not power of attorney holder at the time when allegedly forged documents were submitted before the Collector in the year 2007-2008.

4. Mr. Narendra K. Amin, learned advocate for the petitioner submitted that as per the allegations in the FIR, present petitioner as power of attorney holder of Valibhai Metar, the claimant of the land mentioned in the FIR is representing him before the Courts. The FIR contends that alleged forged documents were in possession of accused no.1 Valibhai which were seized by the police from the accused and sent to FSL for examination on 25/01/2020.

R/SCR.A/4133/2020 JUDGMENT DATED: 17/11/2021

5. Mr. Amin, learned advocate submitted that the petitioner was summoned to remain present on 02/01/2020 by by special investigation team headed by the Superintendent of Police, Amreli and his statement was recorded by the Investigating Officer and on the same day, accused no.1 was also present before the police, from whom the Investigating Officer seized all the original documents with reference to the application made to the Collector Office in the year 2007- 2008. Mr. Amin, learned advocate states that no regular process and procedure was adopted for the seizure.

6. Mr. Amin, learned advocate further submitted that though the FIR is registered after examination of the documents, the complainant has not mentioned the name of the petitioner in the FIR. The Superintendent of Police has mentioned nothing against the present petitioner in his report dated 29/05/2020 to the Collector requesting for registration of the FIR. Mr. Amin, learned advocate submitted that there is no evidence against the petitioner to rope him in the matter and to array him as an accused.

7. Mr. Amin, learned advocate stated that the petitioner as a power of attorney holder has all the rights to appear before the competent court of law to agitate the case on behalf of accused Valibhai Metar and that itself would not suggest any criminality.

8. Mr. Amin, learned advocate referred to the following decisions in support of the case of the petitioner.

"1. Kasthuri Radhakrishnan & Ors. vs. M. chinniyan &

R/SCR.A/4133/2020 JUDGMENT DATED: 17/11/2021

Ors. reported in AIR 2016 SC 609

2. Sheila sebstian vs. R. Jawaharaj and Ors. reported in AIR 2018 SC 2434

3. Kishan singh vs. Gurpal Singh and Ors. reported AIR 2010 SC 3624

4. Md. Ibrahim and Ors. vs. State of Bihar and Ors. reported (2009) 8 SCC 751

5. State of Haryana and Ors. vs. Ch. Bhajna Lal and Ors. reported in AIR 1992 SC 604.

9. Mr. Amin, learned advocate further submitted that the petitioner is protected by this Court vide order dated 08/09/2020 and therefore, till date no charge sheet has been filed against the present petitioner.

10. Mr. Amin, learned advocate referring to the report of the Police Inspector dated 15/07/2020 filed through the Additional Public Prosecutor, Amreli before the Sessions Court in Criminal Misc. Application No.279 of 2020 dated 20/06/2020 submitted that report of the police suggest that on the statement of the co-accused, Vinodray Shyamjibhai Bhat and Usufbhai Ismailbhai Motivala, the petitioner is arrayed as accused. Mr. Amin, learned advocate contended that the said co-accused only referred the present petitioner as being a power of attorney holder of Valibhai Metar. Mr.Amin, learned advocate thus stated that this itself would not be ground for arraying him as an accused since it is a private contract between the accused Valibhai Metar and present petitioner and the terms of power of attorney would be guided by the Contract Act. He further stated that the petitioner as a power of attorney holder cannot be restrained from representing

R/SCR.A/4133/2020 JUDGMENT DATED: 17/11/2021

Valibhai Metar in the Courts of law and his attempt to represent Valibhai Metar in the Court of law, itself would not give any ground to the police to file any criminal complaint or make any aspersion of any criminal conduct of the petitioner.

11. Mr. Pranav Trivedi, learned APP, referring to the report of the Police Inspector dated 26/10/2021, submits that before the SIT, 237 documents were produced and out of those documents, few of the documents were sent to DFS, Gandhinagar for examination. Report of FSL suggests that the documents are false and forged. The report also suggests that papers used for documents are fresh and attempt had been made to show them as old documents by colouring them. The police has found those all the documents produced by the accused during the course of investigation and apart from the referred documents, the police secured about 471 documents which as per the report by the Police are false and forged. Alleged documents were secured from accused Valibhai Metar, the allegation against the petitioner being power of attorney holder is of being in conspiracy with said accused Valibhai Metar.

12. Mr. Amin, learned advocate in counter submitted that the FIR does not remotely indicate any conspiracy making any forged document and there are no material evidence before the year 2011 to suggest that the petitioner was a party to the alleged conspiracy of making false documents nor there are any ingredients to suggest meeting of mind for any such alleged conspiracy and ingredients of Section 10 of the Evidence Act are not fulfilled. Merely on the statement of co- accused, the petitioner could not be incriminated in for the

R/SCR.A/4133/2020 JUDGMENT DATED: 17/11/2021

offence of conspiracy. He further submitted that the FIR lacks ingredients of Section 463 and 464 of the Indian Penal Code which defines the forged documents and states that the documents were submitted by the complainant in the year 2007 i.e. prior to the petitioner being entrusted with the power of attorney and stated that no role is attributed to the petitioner in the FIR to attract any ingredients of the alleged sections in the FIR. He further submitted that even if contents of the FIR is to be believed then the conspiracy appears to have ended in the year 2007 and subsequently in the year 2011 the petition become attorney holder for accused Valibhai Matar. It is submitted that delay of 14 years for registration of the FIR is also fatal and none of the version attracts any offence against the petitioner as a power of attorney holder.

13. In the case of Kasthuri Radhakrishnan & Ors. vs. M. Chinniya & Ors. reported in AIR 2016 SC 609 (supra), the Hon'ble Supreme Court while explaining law relating to power of attorney, in para-42, observed as under:

"42. The law relating to power of attorney is governed by the provisions of the Power of Attorney Act, 1982. It is well settled therein that an agent acting under a power of attorney always acts, as a general rule, in the name of his principal. Any document executed or thing done by an agent on the strength of power of attorney is as effective as if executed or done in the name of principal, i.e., by the principal himself. An agent, therefore, always acts on behalf of the principal and exercises only those powers, which are given to him in the power of attorney by the principal. Any act or thing done by the agent on the strength of power of attorney is, therefore, never construed or/and treated to have been done by the agent in his personal capacity so as to create any right in his favour but is always construed as having done by the principal himself. An agent, therefore, never gets any personal benefit of any nature. Applying the aforesaid principle, this Court in Suraj Lamp and Industries Private Limited (2) vs. State of Haryana & Anr., (2012) 1 SCC 656 held in paragraphs 20 and 21 as under:

R/SCR.A/4133/2020 JUDGMENT DATED: 17/11/2021

"20. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorises the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section 1-A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee.

21. In State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77, this Court held: (SCC pp. 90 & 101, paras 13 & 52)

"13. A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.

***

52. Execution of a power of attorney in terms of the provisions of the Contract Act also the Powers of Attorney Act valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee."

An attorney-holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor."

This was followed by this Court in Church of Christ Charitable Trust and Educational Charitable Society vs. Ponniamman Education Trust, (2012) 8 SCC 706 (para 20)."

R/SCR.A/4133/2020 JUDGMENT DATED: 17/11/2021

14. Power of attorney is a creation of agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of the grantor, which when executed will be binding on the grantor as if done by him.

15. The relation between the grantor and grantee would be binding in terms of the grant by the deed of power of attorney executed by the principal in favour of the agent, the agent would derive a right to use his name and all acts, deeds and things done by him shall be read as if done by the donor subject to limitations contained in the said deed. A power of attorney is, as widely known, is a document of convenience. The agent would be responsible to the principal for any of the acts as per the deeds while it would not be conversely true for the agent to be bound by acts of the principal.

16. Section 238 has been referred by learned advocate Mr.Amin. The same is reproduced as under:

"238. Effect, on agreement, of misrepresentation or fraud by agent.- Misrepresentation made or frauds committed, by agents acting in the course of their business for their principals, have the same effect on agreements made by such agents as if such misrepresentations or frauds had been made or committed by the principals, but misrepresentations made, or frauds committed, by agents, in matters which do not fall within their authority, do not affect their principals."

17. Any misrepresentation or frauds committed by the agents while in the course of business for the principal would have the effect as if the same has been committed by the principal. Therefore, any acts of the power of attorney

R/SCR.A/4133/2020 JUDGMENT DATED: 17/11/2021

subsequent to the execution of the document of the power of attorney would bind the principal while it would not be so to bind the agent for any acts of the principal which was prior to the execution of the power of attorney. So any fraud or misrepresentation made by the principal prior to the execution of the document of convenience would not bind the agent. Therefore, any act of Valibhai Metar as alleged by the prosecution as of the document being forged and fabricated, false, being bogus would not bring the case against the present petitioner who is entrusted by way of execution of power of attorney dated 28/06/2011 to act in accordance with the terms of the said document. Thus, this Court does not find any case against the present petitioner.

18. Considering the facts of the case, it would be relevant to refer to a decision of the Apex Court in the case of State of Haryana & Ors. V. Bhajan Lal & Ors reported in 1992 Supp (1) SCC 335 wherein, the Apex Court has broadly set out the circumstances in which the High Court can exercise the power under Section 482 of Criminal Procedure Court. Paragraphs 102 and 103 thereof read as under:

"The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482 CrPC can be exercised by the High Court 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 channelized and inflexible guidelines or rigid formula 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

R/SCR.A/4133/2020 JUDGMENT DATED: 17/11/2021

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 FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(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 Section 155(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 persons can ever reach a just conclusion that there is sufficient grounds 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 provisions in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(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."

19. In the result, the petition is allowed. The case of the

R/SCR.A/4133/2020 JUDGMENT DATED: 17/11/2021

petitioner would fall in category no.(1) of the Bhajanlal's case (supra). The impugned FIR being CR No.11193003201041 of 2020 registered with Amreli City Police Station, Amreli for offences punishable under Sections 193, 177, 260, 465, 467, 471, 472, 473, 474, 475, 484, 420, 120B and Section 470 of the Indian Penal Code and all the consequential proceedings initiated in pursuance thereof qua the petitioner are quashed and set aside. Rule is made absolute.

(GITA GOPI,J) ila