Meghubhai Naranbhai Mir vs State Of Gujarat
2022 Latest Caselaw 184 Guj

    R/CR.MA/10803/2010                              JUDGMENT DATED: 06/01/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/CRIMINAL MISC.APPLICATION NO. 10803 of 2010
                            With
CRIMINAL MISC.APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1
                           of 2018
       In R/CRIMINAL MISC.APPLICATION NO. 10803 of 2010

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

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1     Whether Reporters of Local Papers may be allowed YES
      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 ?

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                     MEGHUBHAI NARANBHAI MIR & 6 other(s)
                                  Versus
                        STATE OF GUJARAT & 1 other(s)
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Appearance:
MR BM MANGUKIYA(437) for the Applicant(s) No. 1,2,3,4,5,6,7
MS BELA A PRAJAPATI(1946) for the Applicant(s) No. 1,2,3,4,5,6,7
MR YATIN SONI(868) for the Respondent(s) No. 2
MS. MAITHILI MEHTA ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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    CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                               Date : 06/01/2022

                               ORAL JUDGMENT

Heard learned Advocate Mr. B.M Mangukia on behalf of the petitioner, learned APP Ms. M.D Mehta for the respondent State and learned Advocate Mr Yatin Soni on behalf of the respondent no.2.

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2. By way of this petition, the present petitioners challenge an FIR being CR I 84 of 2009 registered on 23.12.2009 with the Dhandhuka Police Station in Ahmedabad District for the offences punishable under Sections 465, 467, 468, 471, and 114 of the Indian Penal Code. In the criminal complaint, the complainant, who has by now expired interalia alleges that his father one Chandubha Nonghubha Chudasma had expired in the year 1967 and whereas his mother Amjiba had expired in the year 2001 and whereas according to him upon death of his father there were 7 legal heirs including one Abhesang Chandubha who was the brother of the complainant. The complainant further alleges that his father was the owner of approximately 100 bighas of land in various villages and whereas the present dispute is with regard to lands admeasuring 20 bighas in Rahtalav village. According to the complainant upon demise of his father in the year 1967 the name of his brother Abhesang Chandubha had been mutated in the revenue record inspite of other legal heirs also been alive and whereas it is also mentioned that the said Abhesang had expired on 4.10.2008. The complainant had also mentioned that the land in question was a new tenure land and it could not have been according to the complainant, sold till February 2009. It is alleged that the complainant had received a notice under Section 135-D by the revenue authorities with regard to land bearing survey no. 56/2 that is the land in question whereby one Naranbhai had applied for mutating a registered sale deed dated 30.7.1969 whereby he had purchased the land from Abesang Chandubha that is brother of the complainant. It is further mentioned that though the complainant had objected against mutation of such an entry, before the Mamlatdar, yet the Mamlatdar without considering the same had rejected the objections and mutated entry no. 580 in the revenue record and the land was shown as being of the ownership of Naranbhai Vashrambhai. It is alleged by the complainant that while the said Naranbhai Vashrambhai had actually expired in the year 2000 yet in the application dated 17.8.2008, whereby the details of the sale deed was requested to be mutated in the revenue record, was stated to be submitted by Naranbhai Vashrambhai. The complainant claims the same to be a

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forgery and therefore the impugned complaint came to be filed.

3. Heard learned Advocate Mr. Mangukia on behalf of the petitioner who would submit FIR being CR I 84 of 2009 registered on 23.12.2009 with the Dhandhuka Police Station in Ahmedabad District for the offences punishable under Sections 465, 467, 468, 471, and 114 of the Indian Penal Code.that the complaint is pr FIR being CR I 84 of 2009 registered on 23.12.2009 with the Dhandhuka Police Station in Ahmedabad District for the offences punishable under Sections 465, 467, 468, 471, and 114 of the Indian Penal Code has been preferred by the complainant for no reason more particularly since the revenue records show that in the year 1967 according to the complainant the name of brother of the complainant Abesang Chandubha had been mutated in the revenue record as the owner of the land. Learned Advocate would further submit that the complainant had not challenged the sale deed in question for a long time and whereas a Civil Suit had been preferred in the year 2011 before the Principal Civil Judge Dhandhuka, being Regular Civil Suit No. 223 of 2011 and whereas the sale deed of 1969 had been questioned in the said Civil Suit.

4. Learned Advocate would submit that the said Civil Suit got dismissed for non-prosecution on 18.7.2016 and the position remains as such till date. Learned Advocate would submit that all this issues would go to show that the complaint is nothing but an abuse of process of the Court and therefore, this Court may interfere and set aside the same.

5. Learned APP Ms. Mehta would submit that the allegations leveled in the complaint reflect that the dispute between the parties is a purely a civil dispute and whereas eventhough there might be some allegations of an alleged forgery in the complaint yet the complainant himself may not be directly aggrieved by the same. Learned APP would therefore submit that this Court may pass appropriate orders keeping in view the said submissions.

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6. Learned Advocate Mr. Yatin Soni has strongly opposed this petition and would submit that admittedly on plain reading of the complaint, a forgery is alleged and therefore the said issue requires to be investigated by the Investigating Officer. Learned Advocate would further submit that as such the complainant is also aggrieved by the fact that the name of the brother of the complainant was mutated in the year 1967 excluding the names of other legal heirs and therefore, automatically the sale deed of 1969 in favour of Naranbhai Vashrambhai could not be said to be a legal sale deed.

7. Learned Advocate Mr. Soni would further submit that as such since the fact of the sale deed of 1969 not being brought to the notice of the complainant till the year 2009, there was no occasion for the complainant to have questioned the same till the said date. Learned Advocate Mr. Soni would submit that admittedly on the date when the application for mutating the details with regard to the sale deed of 1969 had been made ie on 13.8.2008, Naranbhai Vashrambhai was no more alive and hence, the said application under the signature of Naranbhai Vashrambhai was a clear forgery, and, therefore, according to learned Advocate the complaint requires to be investigated and according to learned Advocate this Court may not interfere with the complaint at this stage.

8. Learned Advocate Mr. Soni has also relied upon a decision of the Hon'ble Apex Court in the case of Rajeev Kourav Vs Baisahab and Ors reported in (2020) 3 SCC 317 and would submit that the Hon'ble Apex Court has laid down the law that the High Court at the initial stage of criminal proceedings should not embark upon appreciation of evidence while considering a petition for quashing under Section 482 and whereas according to learned Advocate such powers should be exercised in exceptional circumstances as set out by Hon'ble Apex Court. Learned Advocate relying upon the said decision would submit that this Court may not interfere with the complaint FIR being CR I 84 of 2009 registered on 23.12.2009 with the Dhandhuka Police Station in

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Ahmedabad District for the offences punishable under Sections 465, 467, 468, 471, and 114 of the Indian Penal Code.nt and may reject the present petition.

9. Heard learned Advocates for the parties who haven not submitted anything further.

10. The question which would arise for consideration of this Court is whether the FIR discloses cognisable offences more particularly whether there is any forgery, as alleged by the complainant has taken place and whether in the facts of the case should the Court quash the impugned complaint or not.

11. From the submissions made by learned Advocates for the respective parties and upon perusal of the record, the following undisputed facts could be culled out :

(1) The father of the complainant had expired in the year 1967 and though according to the complainant there were 7 legal heirs in all, only the name of the brother of the complainant one Abhesang Chandubha Chudasma was mutated in the revenue record with regard to the land bearing survey no. 56/2 Rahatalav;

(2) the complainant had never challenged the said revenue entry.

(3) there is a registered sale deed of the year 1969 between Abhesang Chandubha and Naranbhai Vashrambhai, father of the applicants.

(4) The sale deed till date has not been questioned by legal heirs of Abhesang Chandubhai.

(5) The petitioner has challenged the said registered sale deed by preferring Civil Suit in the year 2011 and whereas the said Civil Suit has been dismissed for non-prosecution in the year 2016 and whereas there is nothing on record to show

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that the suit had been revived.

12. In the backdrop of the aforestated undisputed facts let us now examine the impugned FIR. While the complainant has given details about the land in question, the fact of name of the brother of the petitioner being entered into revenue record in the year 1967 etc. in the complaint, yet the only act which could be treated as a cognisable offence as mentioned by the complainant is the allegation of forgery in an application had been made on 13.8.2008 for mutating for details with regard to the registered sale deed dated 30.7.1969. Such application having been made under the signature of Naranbha Chandubha and whereas the said Naranbha having expired in the year 2000 it is alleged that such an application is a forgery. The issue, therefore, would be whether the act of the application for mutation of the registered sale deed under the name of deceased person be termed as a forgery as punishable under the Section 465 of the Indian Penal Code. While this Court notes that along with offence punishable under Section 465, offences punishable under Section 467 i.e with regard to forgery of valuable security, will, etc, offence punishable under Section 468 i.e forgery for the purpose of cheating, offence punishable under Section 471 i.e using a genuine or forged documents, has been alleged but in the considered opinion of this Court unless forgery in the facts of this case, is prima facie held to be committed, none of the other offences would stand independently.

"Forgery is defined at Section 463 of the Indian Penal Code it reads as thus Forgery.-- 340 [Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury], to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."

13. The issue in question is whether the application under the name of the deceased person, in the facts of this case could be termed as a forgery. Such discussion is required since in the opinion of this Court, the applicants did not derive any benefit by mentioning the name of their deceased father as the

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applicant nor any corresponding loss has been caused to the State authorities by making such an application. Certainly the complainant had nothing to do with the transaction in question and his role was limited to the extent of bringing it to the notice of the concerned authorities that a cognisable offence had taken place.

14. In this regard this Court would refer to decision of the Hon'ble Apex Court in the case of Dr. Vimla Vs Delhi Administration reported 1963 Supp (2) SCR 585 AIR 1963 SC 1572, where the Hon'ble Supreme Court has succinctly explained the meaning of the word fraudulently, which is essential for alleging an offence of forgery.

Paras 15 and 16 of the said decision being relevant for the present purpose are reproduced hereinbelow for the purpose of better appreciation.

15. "To summarize : the expression "'defraud" involves two elements, namely, deceit and injury to the person deceived.

injury is something other than (1) A.I.R. 1944 Lah. 380,382. economic loss that is', deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non economic or non- pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied."

" 16. Now let us apply the said principles to the facts of the present case. Certainly, Dr. Vimla was guilty of deceit, for though her name was Vimla, she signed in all the relevant papers as Nalini and made the insurance company believe that he name was Nalini, but the said deceit did not either secure to her advantage or cause any non-economic loss or injury to the insurance company. The charge does not disclose any such advantage or injury, nor is there any evidence to prove the same. The fact that Dr.Vimla said that the owner of the case who sold it to her suggested that the taking of the sale of the car in the name of Nalini would be useful for income-tax purposes is not of any relevance in the present case, for one reason, the said owner did not say so in his evidence and for theother, it was not indicated in the charge or in the evidence. In the charge framed, she was alleged to have defrauded the insurance company and the only evidence given was that if it was disclosed that Nalini was a minor, the insurance company might not have paid the money. But as we have pointed out earlier, the entire transaction was

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that of Dr. Vimla and it was only through in the name of her minor daughter for reasons best known to herself. On the evidence as disclosed, neither was she benefited nor the insurance company incurred loss in any sent of the term.

14. The Hon'ble Apex Court has interalia laid down that for the purpose of holding that a document had been forged or there was forgery, there has to be an intent to defraud or the act concerned should have been done fraudulently. The Hon'ble Apex Court has further laid down that the expression defraud involves two elements i.e the deceit and injury to the person deceived. Applying the principle in the instant case it appears that while the father of the petitioner had already expired, yet the application for mutating the details with regard to the registered sale deed in the revenue record was under the name of the deceased father. Thus as held by the Hon'ble Apex Court the applicants herein also would be guilty of deceit but such deceit in the considered opinion of this Court did not secure any advantage in favour of the applicants nor they did cause any non- economic loss or injury to the State respondents. Even if the applicants had made an application under their own names, with appropriate details as regards the property being inherited by the petitioner more particularly upon demise of the late father, the revenue authorities were bound to mutate the details of the registered sale deed. Under such circumstances, in the considered opinion of this Court, the petitioners could not be stated to have committed forgery.

15. The principles with regard to the exercise of jurisdiction of the High Court exercising jurisdiction under Section 482 has been explained by the Hon'ble Apex Court in case of State of Haryana Vs Bajanlal reported in 1992 Supp(1) SCC 335. The Hon'ble Apex Court at para 102 of the said decision has stated illustrations wherein the power under Section 482 of the Code could be exercised, is quoted herein below for benefit.

"102. The Supreme Court has held in Bhajan Lal case that the High Court can quash the FIR to protect the accused from malicious prosecution. It has quashed the criminal proceeding against the Bhajan Lal, the then Chief Minister of Haryana. When a criminal proceeding is instituted with mala-

fide intention to harass the person, the court can quash the entire proceeding for the ends of justice. The Supreme Court has issued seven guidelines which

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should be followed by the Court in the exercise of its inherent power vested by section 482 crpc.

(1) 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.

(2) Where the allegations in the first information report and other materials, if any, accompanying 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 person can ever reach a just conclusion that there is sufficient ground 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 provision 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.

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15.1 Illustration 1 and illustration 7 would be applicable to the facts of the case more particularly since even if the allegations made in the FIR are taken at face value and accepted in their entirety the same do not prima facie constitute any offence or make out a case against the accused. Furthermore since the applicants is though contending that he is a third party who is only bringing to the notice of the concerned authorities about commission of a cognisable offence, yet a minute reading of the complaint would clearly reveal that the complainant had filed the present impugned complaint, with a view to try and take advantage of a mistake committed by the applicants. As such the complainant by filing the FIR was attempting to establish some right in the property. Furthermore it appears that the complainant had never questioned the entry in favour of his brother some where after the demise of the father of the complainant in the year 1967 was attempting to establish some right upon the property which he otherwise was not entitled to. Thus, the impugned complaint in the considered opinion of this Court was maliciously instituted , against the purchaser of the land in question, more particularly the complainant by way of the impugned complaint trying to establish some right in the land in question, therefore, to secure the ends of justice, the impugned complaint is required to be interfered with.

16. In view of the discussion and findings as hereinabove in the, complaint impugned in the present petition FIR being CR I 84 of 2009 registered on 23.12.2009 with the Dhandhuka Police Station in Ahmedabad District for the offences punishable under Sections 465, 467, 468, 471, and 114 of the Indian Penal Code is quashed and set aside. Any further proceedings initiated on the basis of the impugned complaint are also quashed and set aside. Rule is made absolute in the above terms.

(NIKHIL S. KARIEL,J) MARY VADAKKAN