Chotubhai Ramchandrabhai Gamit vs State Of Gujarat
2021 Latest Caselaw 14634 Guj

     R/SCR.A/1731/2015                              ORDER DATED: 21/09/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 1731 of 2015

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             CHOTUBHAI RAMCHANDRABHAI GAMIT & 3 other(s)
                              Versus
                    STATE OF GUJARAT & 1 other(s)
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Appearance:
MR.HIREN M MODI(3732) for the Applicant(s) No. 1,2,3,4
NOTICE SERVED(4) for the Respondent(s) No. 2
MS MONALI BHATT, APP (2) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                Date : 21/09/2021

                                 ORAL ORDER

1. Rule. Learned APP waives service of notice of Rule for the respondent-State.

2. By way of present application, prayer has been made under Section 482 of the Criminal Procedure Code to quash and set aside the impugned FIR registered vide I-CR No.6 of 2015 with Uchchhal Police Station, District Tapi for the offence punishable under Section 465, 467, 468, 471 and 114 of the Indian Penal Code and all incidental and consequential proceedings thereof.

3. Mr. Hiren Modi, learned advocate for the petitioners submitted that the present petitioners are party to the agreement to sell. They are proposed purchasers and witnesses to the purchase of one agriculture land being block/ survey no.24 with an Account No.49 admeasuring hector 3-68- 77 Aare sq. mtr.

R/SCR.A/1731/2015 ORDER DATED: 21/09/2021

4. Mr. Modi, learned advocate submitted that the seller to agreement to sell is Bojuben Gamit and according to her, she had received the property by way of a family partition and the land which had come to her in her share was 7 hector 37 Aare 54 sq. mtr. situated at Anandpur village, Taluka Uchchhal, District Tapi.

5. Mr. Modi, learned advocate submitted that agreement to sell was executed on 27/07/2011 for consideration of Rs.4,55,000/-. The land in question was sold to petitioner no.1 and petitioners nos.2 to 4 are the witnesses to the document.

6. Mr. Modi, learned advocate submitted that prior to the execution of the agreement to sell, the purchaser had verified the revenue entry which discloses the name of Bojuben Bablabhai Gamit as one of the holder of the land. She was in joint possession and applicant no.1 being bonafide purchaser had executed the agreement to sell.

7. Mr. Modi, learned advocate submitted that the applicants came to know on 23/02/2015 about the present complaint wherein they came to know that Bojuben had illegally claimed her share in the ancestral land and that she had filed one suit being Regular Civil Suit No.119 of 2008 which was renumbered as Regular Civil Suit No.2 of 2013 before the Principal Civil Judge, Uchchhal for permanent injunction. Initially stay was granted in favour of Bojuben and after hearing of the said suit, the civil suit was dismissed by the learned Principal Civil Judge, Uchchhal.

R/SCR.A/1731/2015 ORDER DATED: 21/09/2021

8. Mr. Modi, learned advocate submitted that present applicants are not parties to the suit and it is alleged in the FIR that Bojuben has no share in the land and she had fraudulently sold the land by way of an agreement to sell.

9. Mr. Modi, learned advocate submitted that only document which is executed between the present petitioner no.1 and Bojuben is the agreement to sell dated 27/07/2011 and thereafter subsequently the judgment was delivered in Regular Civil Suit No.2 of 2013 which is dated 07/10/2013.

10. Mr. Modi, learned advocate submitted that as per his instruction, Bojuben has died after registration of the FIR.

11. Mr. Modi, learned advocate submitted that the fact of Bojuben's remarriage with one Divaliabhai got disclosed during the course of the trial. Petitioner no.1 would have no source of information regarding remarriage of Bojuben. Her name in the revenue entry was shown as widow of Bablabhai Gamit.

12. Mr. Modi, learned advocate submitted that execution of agreement to sell would not be considered as a false document and provisions under Section 465, 467, 468, and 471 of the Indian Penal Code would not be applicable. Mr.Modi, learned advocate submitted that when a document is executed by a person claiming a property which is not his, he is not claiming that he is some one else nor he is claiming that he is authorized by some one else, the executor of such documents purporting to convey some property of which he is not the owner, is not the execution of false document.

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13. Mr. Modi, learned advocate submitted that here in this case, when the agreement to sell was executed by Bojuben she on record as per the revenue entries was co-owner of the property being widow of Bablabhai Gamit. Subsequently only during the trial, it had come on record that she had married Divaliabhai. Mr.Modi, learned advocate stated that out of the marriage of Bojuben with Bablabhai Gamit, they had a son named Gomabhai and who is also shown as heir of Bablabhai. He is also co-owner of the land. Mr. Modi, learned advocate submitted that Bojuben had executed the agreement to sell on the basis that there was oral partition of the property and there was no reason for the applicant no.1 to not believe the said fact since the property is ancestral property and even otherwise if there was no any partition by metes and bounds, still however, being heirs of the co-parcener, certainly the widow and son of co-parcener would have the share in the property and such share can be sold of even without any partition by metes and bounds. Mr.Modi, learned advocate submitted that there is no criminal culpability attracted in the transaction and if property sold by the person knowing that it does not belong to him then the seller in fact defrauds the purchaser and therefore, in that capacity, present petitioner no.1 is victim to the transaction and he is the person who would be entitled to file a criminal complaint against Bojuben. The FIR by the complainant in the present matter against the petitioners is without any cause and thereby prays for quashing of the same.

14. Mr. Pranav Trivedi, learned APP submitted that here in this matter, by way of an order dated 26/03/2015, further

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investigation came to be stayed. Learned APP submitted that the suit was filed in the year 2008 and subsequently it was renumbered in the year 2013 and during the pendency of the suit, the agreement to sell was executed on 27/07/2011. Therefore, on that basis, the petitioner no.1 cannot be considered as a bonafide purchaser and the agreement to sell was from the very inception with an intention to cheat the original owner of the property.

15. Reliance was placed on 7/12 abstract from the revenue records. Name of Bojuben Bablabhai is in the record of rights by entry no.483 and Gomabhai's name appears to be in the record of right by entry no.402. The complaint is by Paliyabhai Jivaliabhai Gamit who is son of Jivliabhai Ratnabhai Gamit and husband of Bojuben Bablabhai is uncle of the complainant and by name is known as Bablabhai Ratnabhai Gamit. As per the FIR, during the life time of Bablabhai Gamit, the complainant's aunt Bojuben had married one Divaliabhai Gamit of village Parcholi Taluka Ucchal, District Tapi and according to the FIR, the uncle of the complainant and his cousin, son of Bablabhai, both have died.

16. The issue between the members of Ratnabhai Jinabhai's family is about the share in the disputed property. The observation which has been made by the Civil Court is in a suit filed with a prayer which was made by Bojuben as a widow of Bablabhai Ratnabhai Gamit against the present complainant for permanent injunction. Suit was filed on 26/11/2008. It appears that as per the observation of the learned Judge, Bojuben had been started living with Divaliabhai Muliabhai in Parcholi village. Whether she was

R/SCR.A/1731/2015 ORDER DATED: 21/09/2021

legally wedded to Devaliabhai has not been proved and not came on record but the observation was made that she was cultivating the land of Divaliabhai. The learned Judge has observed that Bojuben had admitted the said fact in cross examination. Mr. Modi, learned advocate submitted that Bablabhai Ratnabhai Gamit died on 06/11/2001. Deposition of Bojuben was recorded on 11/07/2012. She had admitted that she was married to Divaliabhai prior to 35 years and the learned Judge observed that in the year 2001, she was the wife of Devaliabhai and not widow of Bablabhai.

17. In the case of Mohammad Ibrahim vs. State of Bihar and another reported in 2010 (1) GLH 184, the Hon'ble Apex Court has considered the case in context of Section 464, 467 and 471 of the Indian Penal Code. Section 464 of the Indian Penal Code defines making of false document. In para 14 of the said decision, it has been observed as under:

"14. An analysis of section 464 of Penal Code shows that it divides false documents into three categories:

1. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.

2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.

3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by

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reason of (a) unsoundness of mind; or (b) intoxication; or

(c) deception practised upon him, know the contents of the document or the nature of the alteration.

In short, a person is said to have made a `false document', if (i) he made or executed a document claiming to be someone else or authorized 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."

18. The Hon'ble Apex Court also considered in para-15 of the said decision that the sale deeds executed by the first appellant, clearly and obviously do not fall under the second and third categories of the "false documents".

19. The Hon'ble Apex Court, thereafter observed in para-16 of the said decision that, there is 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 authorized or empowered by the owner, to execute the deed on owner's behalf. Thereafter, it was held that when a person executes a document conveying a property describing it as his, there are two possibilities. The first is that the bonafide 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

R/SCR.A/1731/2015 ORDER DATED: 21/09/2021

whom or by whose authority he knows that it was not made or executed.

20. In the present case, the petitioner no.1, relying upon 7/12 abstract had executed this agreement to sell, subsequent to agreement to sell in the year 2011, the judgment of the Civil Court was declared on 07/10/2013 and the FIR came to be filed on 23/06/2015. The complainant has failed to even give an explanation of delay in filing the FIR.

21. Here in this case, when the document was executed by Bojuben as widow of Divaliabhai Gamit, she had done so with a bonafide intention being co-sharer in the property. She has not executed the same claiming that she was authorized by some one else nor there is an allegation that Bojuben is a person who has been personated. The identity of person is not questioned. The complainant states that Bojuben is his aunt. The property in the execution of the document, to convey the property, subsequently was found that Bojuben was not the owner is not execution of false document as defined under Section 464 of the Indian Penal Code. If the execution is not a false document, there is not forgery. If there is no forgery, neither offence punishable under Section 467 nor Section-471 of the Indian Penal Code would be attracted and therefore, when there would not be any case of any forgery, then intention of cheating would not be attributed to the parties to the agreement to sell. The document of execution of sale would not fall in the category of it being the false document. Thus, the same cannot be intended to have been used for the purpose of cheating. Hence, the case of the complainant also would not fall under

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Section-468 of the Indian Penal Code. Rest of the petitioners nos.2 to 4 are witnesses to the documents and when no case is made out against petitioner no.1, there would not be any such criminal intention of the witnesses to the document.

22. In the result, in view of the observations made herein above and facts of the case, present petition is allowed. Impugned FIR registered vide I-CR No.6 of 2015 with Uchchhal Police Station, District Tapi for the offence punishable under Section 465, 467, 468, 471 and 114 of the Indian Penal Code and all incidental and consequential proceedings thereof are quashed and set aside against all the present petitioners. Rule is made absolute to the aforesaid extent.

(GITA GOPI,J) ila