Gujarat High Court
Yusuf Sidiqbhai Meman vs State Of Gujarat on 14 October, 2021
Bench: Gita Gopi
R/CR.MA/20716/2013 CAV JUDGMENT DATED: 14/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 20716 of 2013
With
R/CRIMINAL MISC. APPLICATION NO. 19615 of 2013
With
R/CRIMINAL MISC. APPLICATION NO. 19737 of 2013
With
R/CRIMINAL MISC. APPLICATION NO. 20028 of 2013
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 ?
=============================================
YUSUF SIDIQBHAI MEMAN
Versus
STATE OF GUJARAT & 1 other(s)
=============================================
Appearance in Cr.M.A. No.20716 of 2013:
MR AMIT N CHAUDHARY(5599) for the Applicant(s) No. 1
MR DEEP D VYAS(3869) for the Respondent(s) No. 2
Appearance in Cr.M.A. No.19615 of 2013:
MR DEEP D VYAS(3869) for the Respondent(s) No. 3
R/CR.MA/20716/2013 CAV JUDGMENT DATED: 14/10/2021
Appearance in Cr.M.A. No.19737 of 2013:
Appearance in Cr.M.A. No.20028 of 2013:
=============================================
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 14/10/2021
CAV JUDGMENT
1. All the matters emerges out of the same FIR,
and therefore they are heard together and are disposed of
by this common order.
2. Rule. Ms. Monali Bhatt, learned APP and
learned advocate Mr. Deep D.Vyas waive service of notice
of Rule on behalf of respective parties in the respective
petitions.
3. Applicants, under Section 482 of the Code of
Criminal Procedure, 1973 (for short, "the Cr.P.C.") seek
quashment of the FIR being I-C.R. No. 127 of 2013
registered with Jalalpol Police Station, Navsari for the
offences punishable under Sections 406, 420 and 114 of
Indian Penal Code and the proceedings initiated pursuant
thereto.
4. To get the clarity of the controversy on hand, it
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would be fruitful to understand the position of each of the
accused named in the FIR in connection to the alleged
offence. The applicant in Criminal Misc. Application
No.20716 of 2013 is accused no.2 in the impugned FIR,
who was an employee of one 'K.K. Land Developers'
during the period between 2002 to 2008. The applicant in
Criminal Misc. Application No.19615 of 2013 is accused
no.1 in the impugned FIR, who is the owner of K.K. Land
Developers. The applicant in Criminal Misc. Application
No.19737 of 2013 is accused no.5, who had purchased
the land from the accused no.3, the son of original land
owner i.e. Chaganbhai Jivanbhai Vaidh. The applicant of
Criminal Misc. Application No.20028 of 2013 is accused
no.4, who is Power of Attorney Holder of original land
owner.
5. Chaganbhai Jivanbhai Vaidh was the owner of
land bearing Survey No.493 and accused no.4 was Power
of Attorney Holder of the original land owner bearing
Survey No.181, Block No.493, admeasuring 0.84 Hectare.
The accused no.1 in the capacity of owner of 'K.K. Land
Developers', had entered into an Agreement of Sale in
respect of the subject land being Block No.493 and
launched a scheme in the name of Green Park Society.
The said parcel of land was divided into 89 plots. The
complainant Mr. Dipakbhai Ratanbhai More, had
intended to purchase a plot of land from the aforesaid
plotting admeasuring 560 sq. feet and necessary paper
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works to that effect came to be done.
5.1 During the period between 2001 to 2004, Mr.
Dipakbhai Ratanbhai More had paid an amount of
Rs.31,051/- towards the sale consideration. The other
relatives and friends of complainant have also invested
money in the said scheme. The accused no.1 had
registered 23 Sale Deeds in favour of different plot
holders during the life time of the original land owner.
Owing to the death of the original land owner in the year
2007, the accused no.3 being the son of the deceased
land owner, sold the subject land to accused no.5 - Vijay
Bhailalbai Patel.
5.2 It is stated that aggrieved by the execution of
the sale deed in favour of accused no.5 by the legal heirs
of the original owner, the accused no.1, filed a Suit being
Special Civil Suit No.57 of 2011 on 27.12.2011 seeking
cancellation of the sale deed executed by the legal heirs
of the original land owner. It appears that the Manager of
the said K.K. Developer had filed a criminal complaint
before the 2nd Additional Senior Civil Judge and Additional
Chief Judicial Magistrate, Navsari, being Criminal Misc.
Application No.82/2011 against the Power of Attorney
Holder - accused no.4, legal heirs of the original land
owners, and against the accused no.5, and the learned
trial Court passed an order of inquiry under Section 202
of the Cr.P.C., is stated to be pending before the
competent Court.
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6. Mr. Amit N.Choudhry, learned advocate for the
applicant - accused no.2 in Criminal Misc. Application
No.20716 of 2013, submitted that the work of the
applicant, as an employee of the K.K. Land Developers,
was to collect money from the clients between 2002 to
2008 and he was on monthly salary. He left the job on
2009. He submits that except collecting the money for
K.K. Land Developers, no other role was played by the
applicant and therefore on bare breading of the FIR no
any prima facie case under Sections 406, 420 and 114 of
IPC would be made out against the applicant. He submits
that the applicant was only worker and not the
beneficiary.
7. Mr. Yash N.Nanavaty, learned advocate for the
applicant - accused no.1 in Criminal Misc. Application
No.19615 of 2013 submitted that, on perusal of the FIR, it
prima facie reveals that the complainant has converted
the civil dispute into criminal. He submitted that the
applicant entered into agreement with the original land
owner, who had given his Power of Attorney to one
Jagdishbhai Gandabhai Shah - accused no.4 for dealing
his properties and the total amount was fixed at
Rs.10,01,346. He submits that the said Power of Attorney
was undisputed and never challenged before any
competent authority.
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7.1 Mr. Nanavaty further submits that the present
applicant had already paid the entire amount as per the
agreement to sell to the land owner in installment and
thereafter the subject land was converted into non-
agriculture. He submits that the said plot was divided into
89 plots, which was approved by the concerned authority
and thereafter the complainant and other plot holders
had started investing their money in the said plot. He
submits that after the death of original land owner, the
said Power of Attorney became ineffective and/or
cancelled, but before that, 23 sale deeds were registered
in favour of plot holders and few of them including that of
complainant were in process of finalizing the sale deed.
He submits that during said period, accused no.3 in the
FIR as a son of the original land owner, though was
aware of the fact, sold the entire land to accused no.5 and
therefore a suit being Civil Suit No.57/2011 was
preferred before the Civil Court, Navsari
7.2 It is stated by Mr. Nanavaty that, looking to
the entire facts, the applicant himself was a victim and
cheated by accused nos.3 and 5 in the FIR knowing fully
well that the original land owner had already collected
money from him for the aforesaid land in his life time. Mr.
Nanavaty states that the present applicant has given lis
pendens notice before the sub-registrar, Jalalpore, which
was registered on 04.01.2012. It is stated by Mr.
Nanavaty that the fact of pendency of civil dispute before
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the Civil Court, Navsari was very well known to the
complainant, despite the same, the complainant lodged
FIR against the applicant. Mr. Nanavaty submits that the
applicant herein is willing to execute the sale deed in
favour of plot holders after outcome of the said civil
litigation pending before the Civil Court.
8. Mr. Pravin Gondaliya, learned advocate for the
applicant - accused no.5 in Criminal Misc. Application
No.19737 of 2013, stated that the impugned FIR by
respondent no.2 is nothing but misuse of process of law.
He submits that the applicant is dragged into this
criminal litigation by the complainant with malafide
intention by converting a civil dispute into criminal one.
He submits that the applicant purchased the said plot in
the year 2010-2011 and revenue entry was also made, at
that time no objections were raised from any side.
8.1 Advocate Mr. Gondaliya, states that the
applicant has also filed a suit being Regular Civil Suit
No.197 of 2011 before the Civil Court, Navsari, wherein
below Exh.5, the order was passed restraining accused
no.1 and others to sell, mortgage or transfer the suit land;
and Exh.5 in Special Civil Suit No.57 of 2011 preferred
by the accused no.1, had been dismissed by common
judgment and order dated 04.03.2013 and thereafter the
impugned FIR came to be filed on 03.12.2013.
R/CR.MA/20716/2013 CAV JUDGMENT DATED: 14/10/2021
8.2 Advocate Mr. Gondaliya submits that the
applicant is a bonafide purchaser. The applicant has
purchased the said property from the owners by
registered sale deed. There is no breach of trust by the
present applicant with the complainant nor any property
is entrusted by the complainant to the applicant at any
point of time. He submits that ingredients of any of the
sections, as alleged in the complaint, are not attracted
from bare reading of the complaint, and therefore, Mr.
Gondaliya, prays to quash and set aside the impugned
FIR.
9. Mr. P.B. Khandheria, learned advocate for the
applicant - accused no.4 in Criminal Misc. Application
No.20028 of 2013, submitted that the applicant herein
was original Power of Attorney Holder of Chaganbhai
Jivanbhai Vaidh, original land owner, for dealing his
properties. He submits that the said Power of Attorney
and the Agreement to Sell were undisputed and never
challenged before any competent forum.
10. Learned advocates for the applicants relied on
the judgment of the Hon'ble Apex Court in case of
Mohammed Ibrahim and Others v. State of Bihar
and another, reported in 2010 (1) GLH 184 and the
judgment of this Court in case of Arvindbhai Maganlal
Master And Anr. Vs. State of Gujarat And Anr.,
reported in 2015 (1) G.L.H. 149, urged that the present
applications may be allowed by exercising the inherent
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powers of this Court under Section 482 of Cr.P.C.
11. Mr. Deep D.Vyas, learned advocate for the
original complainant, submits that the modus operandi
appears to have been designed as a part of conspiracy
and fraud to cheat the lower strata of the society, which
was committed by the present applicants, thus requires
consideration. He submits that by virtue of Power of
Attorney, the accused no.1 has made various transactions
without having rights on the land. Advocate Mr. Vyas,
states that filing of the Civil proceedings before the Civil
Court is nothing but a veil and a part of pre-intentional
conspiracy between the accused.
12. Heard learned advocates appearing for the
respective parties. The sections invoked in the present
case are 406, 420 and 114 of IPC. In Mohammed Ibrahim
and others v. State of Bihar (supra), the Apex Court has
explained the concept of "Cheating" in the following
terms:
13. Let us now examine whether the
ingredients of an offence of cheating are
made out. The essential ingredients of the
offence of "cheating" are as follows: (i)
deception of a person either by making a
false or misleading representation or by
dishonest concealment or by any other act
or omission; (ii) fraudulent or dishonest
R/CR.MA/20716/2013 CAV JUDGMENT DATED: 14/10/2021
inducement of that person to either deliver
any property or to consent to the retention
thereof by any person or to intentionally
induce that person so deceived to do or
omit to do anything which he would not do
or omit if he were not so deceived; and (iii)
such act or omission causing or is likely to
cause damage or harm to that person in
body, mind, reputation or property. To
constitute an offence under section 420,
there should not only be cheating, but as a
consequence of such cheating, the accused
should have dishonestly induced the person
deceived (i) to deliver any property to any
person, or (ii) to make, alter or destroy
wholly or in part a valuable security (or
anything signed or sealed and which is
capable of being converted into a valuable
security).
13. A three-Judge Bench in case of State of
Karnataka vs. M. Devenderappa and another,
[(2002) 3 SCC 89], had occasion to consider the ambit
of Section 482 Cr.P.C. By analysing the scope of Section
482 Cr.P.C., Apex Court laid down that authority of the
Court exists for advancement of justice and if any attempt
is made to abuse that authority so as to produce injustice
the Court has power to prevent abuse. It further held that
Court would be justified to quash any proceeding if it
R/CR.MA/20716/2013 CAV JUDGMENT DATED: 14/10/2021
finds that initiation/continuance of it amounts to abuse of
the process of Court or quashing of these proceedings
would otherwise serve the ends of justice. Following was
laid down in paragraph 6:
"6......All courts, whether civil or criminal
possess, in the absence of any express
provision, as inherent in their constitution,
all such powers as are necessary to do the
right and to undo a wrong in course of
administration of justice on the principle
quando lex aliquid alicui concedit,
concedere videtur et id sine quo res ipsae
esse non potest (when the law gives a
person anything it gives him that without
which it cannot exist). While exercising
powers under the section, the court does
not function as a court of appeal or
revision. Inherent jurisdiction under the
section though wide has to be exercised
sparingly, carefully and with caution and
only when such exercise is justified by the
tests specifically laid down in the section
itself. It is to be exercised ex debito
justitiae to do real and substantial justice
for the administration of which alone
courts exist. Authority of the court exists
for advancement of justice and if any
attempt is made to abuse that authority so
as to produce injustice, the court has
power to prevent abuse. It would be an
abuse of process of the court to allow any
action which would result in injustice and
prevent promotion of justice. In exercise of
the powers court would be justified to
quash any proceeding if it finds that
initiation/continuance of it amounts to
abuse of the process of court or quashing
of these proceedings would otherwise
serve the ends of justice. When no offence
is disclosed by the complaint, the court
may examine the question of fact. When a
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complaint is sought to be quashed, it is
permissible to look into the materials to
assess what the complainant has alleged
and whether any offence is made out even
if the allegations are accepted in toto."
Further in paragraph 8 following was
stated:
"8.....Judicial process should not be an
instrument of oppression, or, needless
harassment. Court should be circumspect
and judicious in exercising discretion and
should take all relevant facts and
circumstances into consideration before
issuing process, lest it would be an
instrument in the hands of a private
complainant to unleash vendetta to harass
any person needlessly. At the same time
the section is not an instrument handed
over to an accused to short-circuit a
prosecution and bring about its sudden
death. The scope of exercise of power
under Section 482 of the Code and the
categories of cases where the High Court
may exercise its power under it relating to
cognizable offences to prevent abuse of
process of any court or otherwise to secure
the ends of justice were set out in some
detail by this Court in State of Haryana v.
Bhajan Lal."
13.1 In case of State of Haryana V. Bhajan Lal
and others, AIR 1992 SC 604, the Apex Court made the
following observations:-
"8.1. In the exercise of the extra-ordinary
power under Article 226 or the inherent
powers under Section 482 of the Code of
Criminal Procedure, the following
categories of cases are given by way of
illustration wherein such power could be
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exercised either to prevent abuse of the
process of any Court or otherwise to
secure the ends of justice, though it may
not be possible to lay down any precise,
clearly defined and sufficiently
channelised and inflexible guide in myriad
kinds of cases wherein such power should
be exercised:
(a) where the allegations made in the
First Information Report or the complaint,
even if they are taken at their face value
and accepted in their entirety do not
prima facie constitute any offence or make
out a case against the accused;
(b) where the allegations in the First
Information Report and other materials, if
any, accompanying the F.I.R. do not
disclose a cognizable offence, justifying an
investigation by police officers under
Section 156(1) of the Code except under
an order of a Magistrate within the
purview of Section 155(2) of the Code;
(c) where the uncontroverted
allegations made in the FIR or complaint
and the evidence collected in support of
the same do not disclose the commission
of any offence and make out a case
against the accused;
(d) where the allegations in the FIR do
not constitute a cognizable offence but
constitute only a non-cognizable offence,
no investigation is permitted by a police
officer without an order of a Magistrate as
contemplated under Section 155(2) of the
Code;
(e) where the allegations made in the
FIR or complaint are so absurd and
inherently improbable on the basis of
which no prudent person can ever reach a
just conclusion that there is sufficient
ground for proceeding against the
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accused;
(f) where there is an express legal bar
engrafted in any of the provisions of the
Code or the concerned Act (under which a
criminal proceeding is instituted) to the
institution and continuance of the
proceedings and / or where there is a
specific provision in the Code or the
concerned Act, providing efficacious
redress for the grievance of the aggrieved
party;
(g) where a criminal proceeding is
manifestly attended with mala fide
and/or where the proceeding is
maliciously instituted with an ulterior
motive for wreaking vengeance on the
accused and with a view to spite him due
to private and personal grudge."
13.2 In the case of International Advanced
Research Centre For Powder Metallurgy And New
Materials (ARCI) & Ors. Vs. Nimra Cerglass
Technics (P) Ltd & Anr., reported in 2015 LawSuit
(SC) 885, the Hon'ble Apex Court held that distinction
between breach of contract and the cheating would
depend upon the intention of the accused at the time of
alleged inducement. If it is established that the intention
of the accused was dishonest at the time when accused
made a promise and entered into a transaction with the
complainant to part with the property or money, then the
liability is criminal and the accused is guilty of the offence
of cheating. On the other hand, if all that is established
that a representation made by the accused has
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subsequently not been kept, criminal liability cannot be
foisted on the accused and the only right which the
complainant acquires is the remedy for breach of contract
in a Civil Court. Mere breach of contract cannot give rise
to criminal prosecution for cheating unless fraudulent or
dishonest intention is shown at the beginning of the
transaction.
13.3 S.W. Palanitkar & Ors. Vs. State of Bihar &
Anr., reported in (2002) 1 SCC 241, has been referred
to in the case of International Advanced Research Centre
For Powder Metallurgy And New Materials (ARCI) & Ors.
(supra), wherein it was held as under:
"21 In order to constitute an offence of
cheating, the intention to deceive should be
in existence at the time when the inducement
was made. It is necessary to show that a
person had fraudulent or dishonest intention
at the time of making the promise, to say that
he committed an act of cheating. A mere
failure to keep up promise subsequently
cannot be presumed as an act leading to
cheating."
13.4 The Hon'ble Apex Court in case of Kishan
Singh (Dead) Through Lrs. Vs. Gurpal Singh And
Other, reported in (2010) 8 Supreme Court Cases
775, while dealing with the inordinate delay in filing of
the FIR held that:
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"21. Prompt and early reporting of the
occurrence by the informant with all its vivid
details gives an assurance regarding truth of
its version. In case, there is some delay in
filing the FIR, the complainant must give
explanation for the same. Undoubtedly,
delay in lodging the FIR does not make the
complainant's case improbable when such
delay is properly explained. However,
deliberate delay in lodging the complaint is
always fatal.
22. In cases where there is a delay in
lodging a FIR, the Court has to look for a
plausible explanation for such delay. In
absence of such an explanation, the delay
may be fatal. The reason for quashing such
proceedings may not be merely that the
allegations were an after thought or had
given a coloured version of events. In such
cases the court should carefully examine the
facts before it for the reason that a
frustrated litigant who failed to succeed
before the Civil Court may initiate criminal
proceedings just to harass the other side
with mala fide intentions or the ulterior
motive of wreaking vengeance on the other
party. Chagrined and frustrated litigants
should not be permitted to give vent to their
frustrations by cheaply invoking the
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jurisdiction of the criminal court. The court
proceedings ought not to be permitted to
degenerate into a weapon of harassment
and persecution. In such a case, where an
FIR is lodged clearly with a view to spite the
other party because of a private and
personal grudge and to enmesh the other
party in long and arduous criminal
proceedings, the court may take a view that
it amounts to an abuse of the process of law
in the facts and circumstances of the case."
14. The allegation of complainant, Mr. Dipakbhai
Ratanbhai More, is to the effect that he has decided to
purchase the property from the owner of K.K. Land
Developers, Mohd. Faizal A.Gaffar Kapadia, accused no.1,
and therefore had gone to the office of K.K. Land
Developers, which was just adjacent to the plot and
purchased Plot No.128-P 14*14 = 560 sq. foot. He was to
pay the money to Green Park Society in installment. He
paid Rs.401 on 21.11.2011 and thereafter from 2001 till
2004, the complainant paid Rs.31,051/- along with the
cost of sale deed and as per the complainant he had
purchased the plot for Rs.35,000/-, but as there was a
scheme where the purchasers were permitted to pay
lesser amount, if they could pay the installment
expeditiously and therefore the complainant states that
for him the price of the plot came to Rs.31,051/-.
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14.1 As per the allegation, the installment of the plot
was collected by accused no.2 and receipts were given for
the payment. The allegation against the accused no.1 as
owner of K.K. Land Developers, was that in spite of
paying the whole of the consideration money of the plot,
the sale deed was not executed. The complainant has also
named about 12 persons from whom total consideration
money were taken by the K.K. Land Developers. The
complainant states that they were assured by accused
nos.1 and 2 that they would execute the sale deed in their
favour, but till the date of the complaint, neither sale
deed was executed nor they handed over the possession
of the property.
14.2 The complainant has also stated in the
complaint that it came to his knowledge that one Saifudin
Kutubdin Sekh of Maroli, sale deed was executed in his
favour and one Vijay @ Talwar Bhailalbai Patel - accused
no.5 had constructed a compound, who informed him that
Block No.493 of Green Park Society was sold to him by
the land owner, Harshad Chhaganbhai Vaidh. Thus, the
complainant alleges conspiracy of Harshad Chhaganbhai
Vaidh - accused no.3, who is the son of original land
owner and Jagdish Gandalal Shah - accused no.4, who is
the Power of Attorney Holder of original land owner -
Chaganbhai Jivanbhai Vaidh.
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14.3 The K.K. Land Developers had made payments
to Gagdish Gandabhai Shah, dated 11/12/2001 -
Rs.1,00,000/-, 24/12/2001 - Rs.1,50,000/-, 1/01/2002 -
Rs.1,00,000/-, 4/02/2002 - Rs.1,00,000/-, 13/05/2002 -
Rs.2,50,000/-, 2/11/2002 - Rs.50,000/-, 9/11/2012 -
Rs.50,000/-, 18/11/2002 - Rs.50,000/-, 27/11/2002 -
Rs.50,000/-, 24/06/2003 - Rs.1,00,000/-, 3/02/2004 -
Rs.50,000/- and in respect thereto receipts were issued
by accused no.4. The K.K. Land Developers had also
given one public notice dated 17/1/2008 informing that all
the payments were made to Jagdishbhai Ganadlal Shah,
the Power of Attorney Holder of the original land owner,
and two more public notices were published in the news
paper on 22.09.2011 and 01.10/2011 cautioning
subsequent purchasers.
14.4 It is only after the death of original land owner -
Chaganbhai Jivanbhai Vaidh, Lalitaben, Harshadbhai,
Kusumben, Binaben, executed Power of Attorney in
favour of Rajendra Manubhai Naik for the disputed land,
who executed sale deed in favour of Vijaybhai Lalbhai
Patel on 24.06.2011. It is to be noted that the said
Rajendra Manubhai Naik has not been made accused in
the present matter. The purchaser - Vijay Bhailal Patel is
made accused no.5 in the complaint and son of original
land owner, Harshad Chhaganlal Shah has made accused
no.3 in the FIR.
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14.5 The facts of the FIR suggests that the accused
no.1 as a owner of K.K. Land Developers had paid the
money to Power of Attorney Holder, Jagdishbhai Ganadlal
Shah - accused no.4, and gradually sale deeds were
executed in favour of some of the purchasers. The dispute
arose after the death of original land owner - Chaganbhai
Jivanbhai Vaidh, the legal heirs by executing the Power of
Attorney in favour of Rajendra Manubhai Naik, sold the
property to Vijay Bhailal Patel. There was no false
representation made by the accused no.1 to the
complainant. The project was under K.K. Land
Developers. The Green Park Society scheme was
introduced for the purchasers to pay the consideration by
way of installments, as stated by accused no.1 he had
executed sale deed in favour of many purchaser during
the life time of Chaganbhai Jivanbhai Vaidh and was in
process of finalising the sale deed of the complainant and
others but because of death of Chaganbhai Jivanbhai
Vaidh, he could not continue with his project as heirs of
Chaganbhai did not support him. The factum of execution
of sale deed of Green Park Society in favour of others is
reflected in FIR. If the complainant finds the
representation made by the accused has subsequently not
been kept, the criminal liability cannot be foisted on the
accused and only right which the complainant acquires is
the remedy for breach of contract in a Civil Court. The
complainant could not show that there was any
fraudulent or dishonest intention at the beginning of the
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transaction. Further the transaction between the heirs of
deceased by execution Power of Attorney in favour of
Rajendra Manubhai Naik and selling the property to Vijay
Bhailal Patel, would not affect the complainant since
there was no such representation by those people to the
complainant. Any of the rights of the parties claimed
would be decided by the Civil Court.
14.6 The accused no.2 in the impugned FIR is
merely an employee of K.K. Land Developers and thus
there is no privity of contract with the complainant. He
was merely collecting the money for the K.K. Land
Developers. The accused no.4 is Power of Attorney
Holder of original land owner and the contract was
between the original land owner through the Power of
Attorney Holder, thus, there was no such
misrepresentation or inducement from the side of the
Power of Attorney Holder. The claim of accused no.5
would be decided by the Civil Court. There was no direct
transaction of accused no.5 with that of the complainant.
As per the complainant during the period between 2001
to 2004, he paid the amount of Rs.31,051/-. The Green
Park Society Scheme was in progress, many of the sale
deeds were, as stated in FIR, registered. From the year
2001 - 2004 to 2013, the year of filing the FIR, the
complainant remained silent. No explanation is coming
from him for the delay in registration of FIR. These are
the matters, which require final adjudication from the
R/CR.MA/20716/2013 CAV JUDGMENT DATED: 14/10/2021
Civil Court. It appears that initial promises could not be
fulfilled because of subsequent circumstances. The
intention of K.K. Developers was not of cheating. The
project had started by paying the money as consideration
to the original land owner through the Power of Attorney
holder. Death of original owner of the property brought a
twist in the progress of project Green Park Society of K.K.
Land Developers. This Court need not appreciate the
evidence and its truthfulness or sufficiency, inasmuch as
it is the function of the trial Court, High Court inherent
powers is designed to achieve a salutary public purpose
and that a Court proceeding ought not to be permitted to
denigrate into a weapon of harassment or persecution.
Quashment of proceedings would be in interest of justice
as the averments in the complaint do not constitute the
offence alleged and continuation of criminal proceeding is
not just and proper.
15. For the foregoing reasons, the petitions are
allowed. The impugned FIR being being I-C.R. No. 127 of
2013 registered with Jalalpol Police Station, Navsari, is
quashed and set aside qua the present applicants. Rule is
made absolute to the aforesaid extent.
16. After declaring the judgment, Advocate Mr.
Deep D.Vyas for the complainant prayed for staying the
R/CR.MA/20716/2013 CAV JUDGMENT DATED: 14/10/2021
implementation of the order, the said request cannot be
acceded for the reasons and observations laid in the
judgment.
(GITA GOPI, J.)
Pankaj
