Pankajkumar Madanlal Yadav vs State Of Gujarat
2021 Latest Caselaw 14204 Guj

     R/CR.MA/22315/2017                            JUDGMENT DATED: 16/09/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC. APPLICATION NO. 22315 of 2017


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

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

2      To be referred to the Reporter or not ?                         YES

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 ?

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                 PANKAJKUMAR MADANLAL YADAV & 1 other(s)
                                Versus
                      STATE OF GUJARAT & 1 other(s)
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Appearance:
MR MAHARSHI PATEL FOR HL PATEL ADVOCATES (2034) for the
Applicant(s) No. 1,2
MR UDAYAN P VYAS (1302) for the Respondent(s) No. 2
MR PRANAV TRIVEDI, ADDL. PUBLIC PROSECUTOR (2) for the
Respondent(s) No. 1
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     CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 16/09/2021

                             ORAL JUDGMENT

1. By way of this application filed under Section 482 of CrPC, the applicants have prayed to quash and set aside the First Information Report being C.R. No. I - 111 of 2017 registered with Godhra Town A-

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Division Police Station for offences, Panchmahals under Sections 465, 467, 471, 406, 420 and 114 of IPC and all consequential proceedings initiated in pursuance thereof.

2. The facts in brief are that on 01.09.2017 a complaint came to be filed by respondent No.2 herein, who happens to be one of the Members of "Samratnagar Co-operative Housing Society Ltd.", which is a Society registered under the provisions of the Gujarat Co-operative Societies Act, 1961 (for short, "the Cooperative Societies Act"). It is the case of the applicants that they are the President and Secretary respectively of the Society. It is alleged that on 03.04.2016 the applicants had entered into a land bearing Survey Nos.44/5 + 44/6 paiki + 44/7 of Village : Vavdi Buzard, ad-measuring 4,047 square metres, which was owned by one Vrajesh Narayandas Parikh and others and had put up a fence around the land in question. Thereafter, in the General Body Meeting of the Society, the applicants obtained permission to administer the land in question, as if the Society was the owner of the land. On 29.04.2017 the applicants sold a part of the land, ad-measuring 372.32.98 square metres, by way of registered sale deed in favour of three individuals, i.e. Patel Jalpa Kalpeshkumar, Dharmendrasinh Jasvantsinh Rathod and Yadav Pushpa Pankajkumar and it is alleged that one of the purchasers, i.e. Yadav Pushpa Pankajkumar is the wife of applicant No.1 herein. It is alleged in the complaint that though the market value of the land in question is some where between Rs.4 Crores to Rs. 5 Crores, the land has been sold at a consideration of Rs.12.50 Lacs dehors the bye-laws of the Society. It is also alleged that the ownership of the land in question has not been verified.

3. Learned advocate Mr. Patel appearing for the applicants submitted

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that the Society is registered under the Co-operative Societies Act and that the land in question has been purchased by the Society from Navneetkumar Gelabhai Patel and Ambalal Purshottamdas Patel by way of registered sale deed dated 16.06.1993. Corresponding revenue entry has also been entered in the revenue record vide Mutation Entry No.3855 dated 09.08.1993. Mr. Patel stated that the person who has disputed the ownership of the land in question is one Vrajesh Narayandas Parikh, who has filed Regular Civil Suit No.431 of 2008 in the Court of 3 rd Additional Senior Civil Judge, Godhra seeking possession of the land in question, which is reported to be pending. He stated that it was in collusion with the defendants that a consent decree came to be passed without execution of the registered sale deed. The Society was not made a party in spite of the fact that the registered sale deed was executed way back in the year 1993. The consent decree was passed in favour of the plaintiff on 09.02.2010. Thereafter, the decree was produced before the Sub-Registrar concerned on 09.03.2010 for necessary entry in the revenue records.

3.1 Learned advocate Mr. Patel stated that when the above fact came to the knowledge of the Society, it filed Civil Misc. Application No.34 of 2017 before the Court of 3rd Addl. Senior Civil Judge, Godhra wherein, the Society alleged that consent decree in question had been obtained under collusion. He stated that the applicants had filed application before the Office of Registrar, Cooperative Societies dated 11.09.2015 seeking registration of offence under Sections 147A and 148A of the Co- operative Societies Act against the complainant for allegedly committed financial irregularities. By communication dated 05.01.2017, the Assistant District Registrar, Co-operative Societies (Housing), Godhra had called upon the complainant to offer explanation. On account of the said complaint filed by the Society and as a counter-blast, the

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complainant administered threats to disturb the administration of the Society. The Society, therefore, passed Resolution dated 30.04.2017 taking note of the above fact.

3.2 Learned advocate Mr. Patel submitted that the person (Vrajesh Narayandas Parikh) who claims to be owner of the land in question has not filed any criminal complaint. Instead, said Vrajesh Narayandas Parikh and others had filed Special Civil Suit No.17 of 2016 in the Court of Principal Civil Senior Judge, Godhra against the Society seeking removal of the alleged encroachment over the land in question. He stated that the entire issue is civil in nature and the person aggrieved is before the Civil Court. The ownership of the land in question is with the Society since the original owner had executed registered sale deed in favour of the Society on 16.06.1993 and necessary mutation entries had also been certified. In spite of the above, a consent decree has been obtained fraudulently, which has been challenged by the Society.

3.3 Learned advocate further submitted that the respondent- complainant has no locus standi to file the impugned complaint. The Society has been paying the taxes, in Village Form No.8A wherein, it is shown as the owner of the land. A Public Advertisement was given in the "Gujarat Samachar" daily, in its Edition dated 30.06.2016, calling upon the public at large to develop the land in question through sale. However, when none came forward to purchase the land, by Resolution dated 04.09.2016, the President of the Society was authorized to enter into negotiations with any prospective purchaser. Pursuant thereto, the land in question came to be purchased by three individuals, one amongst whom is the wife of applicant No.1, by way of registered sale deed dated 29.04.2017.

   R/CR.MA/22315/2017                                     JUDGMENT DATED: 16/09/2021




3.4    It is further stated that applicant No.1 had filed a complaint against

persons claiming ownership over the land in question by creating false documents and by making false representations in collusion with other accused persons. A writ petition being Special Criminal Application No.9370 of 2016 was filed before this Court wherein, vide order dated 13.12.2016, the Investigating Officer concerned was directed to look into the complaint and to inquire into the commission of cognizable offence, if any. Pursuant to the above order passed by this Court, the Investigating Officer concerned, by letter dated 03.01.2017, informed the applicant No.1 herein that prima facie, the dispute appeared to be civil in nature and that if during the course of investigation, it appears that any offence has been committed, necessary proceedings would be initiated. He stated that the Society had drawn attention of the Investigating Officer concerned to look into the alterations made in Village Form No.7/12 whereby, the words - "paiki 3" had been added in Gujarati language and the name of the Society had been kept in brackets. In spite of that no complaint had been registered.

3.5 Learned advocate Mr. Patel further stated that the District Collector, Panchmahals, by letter dated 04.09.2017, had directed the Assistant Collector, Godhra Prant to look into the allegations made on behalf of the Society as regards alterations made in the Village Form No.7/12. By Notice dated 22.11.2016, the District Collector, Panchmahals, had also called upon Seemaben Vandankumar Shah and others to show cause as to why the revised layout plan with respect to lands bearing Survey Nos.44/5 + 44/6 paiki + 44/7 of Village Vavdi Buzarg should not be cancelled on various grounds, including the ground of concealing facts about the letter dated 28.11.2013 of the Town

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Planning Officer, Godhra which stated that the opinion for revised layout plan may be considered only for Plot Nos.1 to 33 and not for the rest of the land.

3.6 Learned advocate Mr. Patel submitted that a purely civil dispute has been given criminal color by the respondent-complainant, who is a Member of the Society and who, earlier, was an Officer bearer / Secretary of the Society and that the dispute regarding title of the land is already before the Civil Court. The factum of execution of the registered sale deed dated 16.06.1993 was well within his knowledge. He stated that the dispute is with regard to certain parcels of land, on which said Vrajesh Narayandas Parikh has claimed ownership and which has been disputed by the Society. Mr. Patel stated that all these facts were brought to the notice of the Investigating Officer concerned. The District Collector had issued notice to Seemaben Vandankumar Shah, who happens to be a business Partner of the respondent-complainant. The complaint in question has been filed with an ulterior motive of wreaking vengeance against the applicants.

3.7 While relying on the judgment in the case of State of Haryana v. Ch. Bhajan Lal & others, AIR 1990 SC 604, learned advocate Mr. Patel submitted that the impugned complaint is a gross abuse and misuse of the process of law and hence, it deserves to be quashed at the very initial stage as the allegations made therein are false and vexatious. The applicants have acted on behalf of the Society and all the Resolutions have been passed with the consensus of all the members of the Society. The respondent-complainant has filed the impugned complaint just to save his skin as regards the allegations of embezzlement of funds of the Society.

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4. Learned advocate Mr. Udayan Vyas relied on the decision of this Court in the case of Arvind Mills Limited and others v. State of Gujarat and others, 2002 (3) GLR 2472 and submitted that criminal complaint before the police could be filed by any person, as soon as it comes to the knowledge of anybody that any criminal act has been committed. The complainant is a person, who is only setting the criminal law into motion. He further submitted that the question of locus standi of the respondent-complainant has no relevance in criminal jurisprudence as any citizen could come forward with a criminal complaint for setting the criminal machinery into motion so as to maintain order and peace in the Society.

4.1 Learned advocate Mr. Vyas also relied upon the decision of Apex Court in the case of K. Ashoka v. N.L. Chandrashekar and others, AIR 2009 SC 3288 more particularly, on the observations made in paragraphs-13, 14 & 17, which reads thus:

"13. The primary allegation against the respondents in the complaint petition does not make out an offence only under the provisions of Section 109 of the Act as contended by Mr. Bhat but also other offences. A legal embargo in filing a complaint is contained in Section 109(6) of the Act, which reads as under:-

"109. (6). If any person--

(i) not eligible to become a member under Section 17 applies to a co-operative society for admission as a member, or becomes a member, or after ceasing to be a member under sub-section (2) of that section acts as or exercises any rights or privileges of a member of any such co-operative society;

(ii) exercise the rights of a member in contravention of the provisions of Section 19;

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(iii) willfully fails to furnish the information or document in contravention of the provisions of sub-section (3) of Section 87;

(iv) grants a lease of the mortgaged property in contravention of sub-section (1) of Section 95, shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to three thousand rupees."

14. The allegations made in the complaint petition disclose commission of a cognizable offence. A conspiracy is said to have been entered into for putting the society and consequentially the members to a great loss. A conspiracy is also said to have been hatched for the aforementioned purpose as a result whereof not only an allotment was made in favour of a person who was not entitled thereto but also allotted plot was assigned in favour of a third party for a huge sum.

17. The opinion of the High Court that the averments made in the complaint petition are imaginary is not based on any material. Even assuming that the complainant had a score to settle against the accused, the same by itself may not be a ground to quash the entire criminal proceedings particularly in view of the fact that at least a prima facie case has been established in view of the report of the Registrar."

4.2 Learned advocate Mr. Vyas, therefore, submitted that even if any assumption is made that the respondent-complainant has filed the impugned complaint in order to settle scores against the Office bearers of the Society, the same would not be a ground to quash the criminal proceedings.

5. Learned APP Mr. Pranav Trivedi referred to the police report dated 09.01.2021 to submit that false resolutions have been made by the Society and valuable land of the Society has been sold off by the applicants, who have misused their status in the Society. He pointed out

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that statements of Vrajesh Narayandas Parikh, Gitaben w/o. Yogeshkumar Shantilal and Seemaben w/o. Vandankumar Shantilal as also the members of the Society have been recorded, who have stated that land bearing Survey Nos. 44/5 + 6 + 7 + 35 paki, plot Nos.1 to 106 and Survey Nos.44/35 + 44/6 of account No.846, the roads and common plots admeasuring 24,281 square metres approx. (6 Acre), are of the ownership of the Society. It is also stated in the report that during the course of investigation, the applicants had moved this Court by way of Criminal Misc. Application No.22315 of 2017 and on examination of sale deed No.1886 of 2017 dated 29.04.2017, the police found inconsistencies in the documents produced by applicant No.1 when it was compared with the Registers maintained by the Society. It is also stated in the report that applicant No.1 along with co-accused had passed two Resolutions with false interpretations and had thereafter, sold the land in favour of the wife of applicant No.1 and other associates. The first of Resolution No.5.1 was passed on 04.09.2016, which relates to the sale of land and the public notice dated 30.06.2016 relates to development of land. By way of subsequent Resolution dated 26.01.2017, the land has been sold in favour of the wife of applicant No.1 and two other persons by way of sale deed dated 18.06.2016. As per the police report, both the above two resolutions are false and they have been passed by the applicants, which corroborate the say of the respondent-complainant. It was, therefore, prayed that the application may be rejected.

6. Claims and counter-claims have been made in respect of the subject land. The police report suggests that the dispute is regarding a land, which the Society claims to be of its own ownership. Some consent decree appears to have been passed, which has been challenged on the ground that it was passed under collusion. It is required to be noted that

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the person who claims to be the owner of the land in question, i.e. Vrajesh Narayandas Parikh, has not filed any criminal complaint before the police against the applicants herein. Instead, a complaint has been filed with the Office of the Registrar of Cooperative Societies and the said authority has called for necessary explanation as regards the financial irregularities alleged against the complainant. The complaint in question has been filed under Sections 465, 467, 471, 406, 420 and 114 of IPC. There is no quarrel to the principle that any person can put the criminal law into motion and that if the police finds that any cognizable offence has been committed, then it can register an FIR on its own. The registration of FIR cannot be denied on the ground of incompetency of the complainant for lodging the same.

6.1 The sections invoked in the impugned complaint include offence punishable under Section 420 of IPC. In Mohammad Ibrahim v. State of Bihar, 2010 (1) GLH 184, the facts were that a sale deed had been executed conveying a property claiming its ownership. On these facts, it was held that if a property is sold by a person knowing that it did not belong to him or that the property was not of his ownership and had, thereby, defrauded the purchaser, then only the purchaser could file a complaint against the seller and not any third party. In the present case, the person who has disputed the Society's ownership of the disputed land has not filed any criminal complaint and the complaint has been filed somebody, who is the purchaser of the disputed land.

7. In the case of K. Ashoka (supra), the main allegation in the complaint was that the plot was allotted by the Society in favour of a person after making him a member of the Society, though he was not entitled to become a member. Subsequently, the plot was assigned in

R/CR.MA/22315/2017 JUDGMENT DATED: 16/09/2021

favour of third party for huge sum. In the case on hand, the Society is claiming ownership of the land in question. Civil Suits have been filed wherein the title of the land is under challenge and which are reportedly pending. One Vrajesh Narayandas Parikh has put his claim on the disputed parcel of land. However, the police report states that land admeasuring 24,281 square metres belongs to the ownership of the Society and some inconsistencies have also been found in the Resolutions passed by the Society. Whether the land was first put up for development; under what circumstances it was sold to the wife of applicant No.1 and two others; whether their title over the property is legal and valid; are all disputed questions of facts, which could be decided by the Civil Court concerned. The Registrar, Cooperative Societies has not been moved by the respondent-complainant though he is a Member of the Society and there is no report of the authority disclosing commission of any criminal act by the applicants.

8. To constitute an act of cheating or disclosing inducement of delivery of property, etc., the mens rea of the accused at the time of making the inducement is required to be examined. Whether the Resolutions passed by the Society are false or any documents have been forged or any property has been entrusted fraudulently or dishonestly has to be established before the Civil Court. "Fraud" is neither defined in the Indian Penal Code nor has been made an offence under the IPC. Thus, by mere alleging or showing that a person has acted fraudulently, it cannot be assumed that he has committed an offence under the Indian Penal Code unless such fraudulent act is specified as an offence under the IPC. Whether the sale deed executed in favour of the wife of applicant No.1 and two others is a bonafide transaction and has been executed in good faith or not and whether requisite consideration has been paid or not is for

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the Civil Court to decide. The complaint in question has been given on the premise that accused No.1 & 2, being the President and Secretary respectively of the Society, have made false resolutions as regards the land in question, which is not of the ownership of the Society and in spite of knowing the said fact, false documents were executed and were used as being genuine and thereby, committed the offence of cheating and criminal breach of trust. The entire dispute is regarding ownership and possession of the land in question, which, in my opinion, is civil in nature. The documents executed by way of sale deed or the Resolutions passed are not forged documents and thus, there is no forgery and if there is no forgery, then neither Section 467 or 471 of IPC are attracted. The complaint in question appears to have been filed with a malicious intention of wreaking vengeance against the applicants. Whether there was any fraudulent intention to cheat and defraud the Society could not be culled out from the impugned complaint. The dispute in question is regarding land, which the complainant says is not of the ownership of the Society and belongs to some other person and by making false Resolutions, the said property is shown to be of the ownership of the Society. Whether the same is true or not and whether the property belongs to the Society or not is to be decided by the Civil Court in the pending suits. Thus, prima facie, no offence appears to have been committed even if the complaint is read in its entirety.

9. In the case of Mohammad Ibrahim (supra), it is observed that if a property is sold by a person knowing that it is not of his own ownership, then the seller defrauds the purchaser and in such case, the purchaser only can file a complaint against the seller and not any third party. Thus, in the present case, the very locus of the complainant becomes questionable since the aggrieved party has not filed any criminal complaint against the

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seller. Hence, the complaint under Sections 406 and 420 of IPC, at the behest of a third party, is not maintainable.

10. In 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 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 accused;

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(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."

11. Having considered the allegations made in the impugned complaint in light of the principle laid down by the Apex Court in the above decision, this Court is of the opinion that the impugned complaint filed by the respondent No.2 is a clear misuse and abuse of the process of law and deserves to be quashed and set aside in exercise of the inherent powers under Section 482 of Cr.P.C.

12. In the result, the application is allowed. The complaint being C.R. No. I - 111 of 2017 registered with Godhra Town A-Division Police Station and all consequential proceedings initiated in pursuance thereof are quashed and set aside. Rule is made absolute.

(GITA GOPI, J)

PRAVIN KARUNAN