Narendrabhai Maganlal Shah vs State Of Gujarat
2022 Latest Caselaw 4803 Guj

      R/SCR.A/841/2010                              JUDGMENT DATED: 06/05/2022




       R/SPECIAL CRIMINAL APPLICATION NO. 841 of 2010
                            With
CRIMINAL MISC.APPLICATION (FOR VACATING INTERIM RELIEF) NO.
                          1 of 2019
      In R/SPECIAL CRIMINAL APPLICATION NO. 841 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 ?                     No

3      Whether their Lordships wish to see the fair copy No
       of the judgment ?

4      Whether this case involves a substantial question No
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                         NARENDRABHAI MAGANLAL SHAH
                                    Versus
                          STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MR N D NANAVATI, SR. ADVOCATE with MR P P MAJMUDAR(5284) for the
Applicant(s) No. 1
MR SP MAJMUDAR(3456) for the Applicant(s) No. 1
MR Y. S LAKHANI, SR. ADVOCATE with MR ASHISH M DAGLI(2203) for the
Respondent(s) No. 2
MS M D. MEHTA, APP for the Respondent(s) No. 1
==========================================================

     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                Date : 06/05/2022

                                ORAL JUDGMENT

1. Heard learned Senior Advocate Mr. N.D. Nanavati with learned Advocate Mr. P.P. Majmudar for the petitioner, learned APP Ms. M.D. Mehta for the respondent-State and learned Senior Advocate Mr. Y.S.

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Lakhani with learned Advocate Mr. Ashish M. Dagli for the respondent No.2.

2. By way of this petition the petitioner prays for quashing of FIR being C.R. No.I- 113 of 2010 registered with Malavianagar Police Station, Rajkot, for the offence punishable under Sections 406, 420, 465, 467 and 468 of the Indian Penal Code.

3. Brief facts leading to filing of the present petition being that on 01.02.1966 an unregistered partnership was created in the name of Narendra Maganlal Shah which partnership consisted of total 11 persons. The purpose of the partnership as per the partnership deed was for purchase of plot situated at village Madvi, District Rajkot and whereas the plot was to be purchased in the name of Narendrabhai Maganlal Shah i.e. the petitioner herein and whereas the partnership deed inter alia states the share available in favour of each of the partners and whereas it is mentioned that insofar as the petitioner is concerned, he has not invested any money and thus the petitioner is not entitled for any interest thereupon. Furthermore, share available to the petitioner would be of 'Half an Aana' and whereas the shares available in case of other partners are mentioned in the said deed.

3.1 It appears that since the land was an agricultural land and since the other partners, apart from the present petitioner, were not agriculturists as per the relevant statue therefore the land was to be purchased in the name of the present petitioner as he was holding the status of agriculturist. It appears that on 02.02.1996 the land had been purchased from one Premji Jivabhai and mutation entry with regard to the land being transferred in favour of the petitioner was made in the revenue record in the month of April, 1966.

3.2 It further appears that NA Permission was granted with regard to the land in question for using the same for residential purpose on 10.03.1969. It

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appears that after the NA permission has been issued, the partners of the partnership deed had partitioned the property inter-se and whereas the shares available to each individual partner had been mentioned in the said deed including the share which was to be given to the petitioner herein. It further appears that upon the said partition of the property, the partners had resolved to dissolve the partnership firm. It further appears that the District Development Officer concerned had issued notice for cancellation of the NA Permission and whereas upon such notice not being responded to, the NA Permission had stood cancelled. It appears that after the NA Permission had been cancelled, in the revenue record the land had been reverted back in the name of the present petitioner, more particularly since the petitioner was agriculturist in whose name the property had been purchased. It appears that upon the property having reverted back in favour of the petitioner, the petitioner sold away the property by executing a registered sale deed in favour of certain private parties. It also appears that the sale to the private parties, had been challenged by two of the original partners of the partition deed by preferring Special Civil Suit No. 117 of 2007 against the petitioner. It further appears that the learned Civil Judge had after bi-partite hearing rejected the interim injunction application and whereas the same had been challenged before this Court by preferring Appeal from Order No. 56 of 2009. It further appears that vide detailed decision dated 14.12.2009, a learned Co-ordinate Bench of this Court, had been pleased to set aside the order passed below Exh.5 by the learned Civil Judge and whereas the prayers made in the said Appeal had been granted. It appears that in the interregnum, after the order passed by this Court, two contingencies had taken place i.e. the petitioner having approached the Hon'ble Apex Court challenging the decision of this Court granting interim injunction in favour of the original plaintiffs by preferring SLP (Civil) No. 5502 of 2010, and on the other hand the respondent No.2 had filed the FIR

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which is impugned by way of the present petition.

3.3 It is alleged in the FIR that after the land had been purchased as stated hereinabove and the same had been partitioned between the partners of the partnership, thereafter the land had been reverted back upon the NA Permission being cancelled by the District Development Officer, Rajkot and whereas it is alleged that the petitioner had taken the compensation which had been paid on account of some portion of the land being acquired by the Government for constructing a ring road. It is further alleged that the petitioner had vide sale deed dated 25.05.2007 sold the land to one Gunvantray Vrajlal Bhadani and whereas the sale deed also includes a portion of the land, which stood in the name of the Government at the relevant point of time. The FIR also alleges that though the land did not belong to the petitioner, still he had fraudulently prepared the sale deed and had sold the land in favour of his wife. Thus alleging, the impugned FIR was filed.

4. Learned Senior Advocate Mr. N.D. Nanavati appearing for the petitioner would submit that the FIR inter alia alleges commission of offence under Sections 406, 420, 465, 467 and 468 of the IPC. Learned Senior Advocate would submit that a perusal of the FIR would reveal that there are no ingredients in the FIR which would support allegation with regard to commission of any of the offences as alleged. Learned Senior Advocate would submit that insofar as the offence under Section 406 of the IPC i.e. with regard to criminal breach of trust which is defined in Section 405 of the IPC, a perusal of the FIR would reveal that neither there is entrustment of the property or dominion over the property and the property had not been dishonestly misappropriated by the petitioner. Insofar as the offence under Section 420 of the IPC, learned Senior Advocate would submit that cheating which has been defined in Section 415 of the IPC inter alia requires any fraudulent or dishonest act on the part of the person to

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deceive or to make some person deliver a property etc. Learned Senior Advocate would submit that by now it is a well settled proposition of law that for alleging an offence of cheating punishable under Section 420 of the IPC, the dishonest intention should be seen from the inception of the transaction itself. Learned Senior Advocate would submit that the transaction in question, i.e. entering into the partnership deed and thereafter purchasing the property and then subsequently getting NA Permission with regard to the property and thereafter partitioning the property in favour of those persons who had shares in the property as per the partnership deed would go to show that there was no dishonest intention on the part of the petitioner to have deceived the complainant from the inception of the transaction. Learned Senior Advocate would therefore submit that by no stretch of imagination an offence punishable under Section 406 could have been alleged against the petitioner. Insofar as the offence punishable under Sections 465, 467 and 468 of the IPC are concerned, learned Senior Advocate would submit that except for making a bare allegation that the petitioner has committed an act of forgery, the FIR does not state that any forgery was committed or how the forgery was committed. Learned Senior Advocate would submit that as such some portion of the land, more particularly out of intervening ULC proceedings, i.e. some portion of the land which had come in favour of one of the partners, had vested with the State Government i.e. approximately 53.91 sq. mtrs. of plot No. 3 and whereas allegation being that the present petitioner had sold that portion of the land which had vested with the State Government, in that context the forgery alleged to have been committed. Learned Senior Advocate would submit that as such for an allegation of forgery to be maintainable, there has to be making of any false documents with an 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 etc. Learned Senior Advocate submit

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that a bare perusal of the FIR would reveal that no such allegation is levelled against the petitioner. It is submitted that at the most even if the allegations in the FIR are stated to be true and correct, then also the allegation in the FIR would mean that the petitioner had sold the parcel of the land which he was not entitled to sell, more particularly by that time a part of the land having been vested with the State Government. Learned Senior Advocate would submit that in context of such factual situation, the allegation of forgery could not be alleged. Thus submitting learned Senior Advocate would submit that the complainant and another person already having preferred the Civil Suit and whereas the civil proceedings at the interim stage having reached upto the Hon'ble Apex Court, the rights and contentions of the parties could be decided by the learned Civil Court in the Civil Suit referred to hereinabove and whereas the impugned FIR being clearly an abuse of process of law, the same may be quashed by this Court.

4.1 Learned Senior Advocate Mr. Nanavati would further contend that as such at the relevant point of time, the partnership deed would show that a total of 11 persons including the petitioner had entered into the partnership deed and whereas except for the complainant of the present complaint and one another partner, none of the other partners have questioned the transaction i.e. later transaction of the petitioner having sold the property to a third person. Learned Senior Advocate would further submit that in any case this Court ought to appreciate that the complainant after having filed the Civil Suit making the very selfsame allegations in the year 2007, had preferred the impugned FIR approximately after a period of three years and no reason for such delay being stated in the FIR itself, the same would be fatal. Thus submitting learned Senior Advocate has requested this Court to quash the impugned FIR.

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5. This petition is vehemently opposed by learned Senior Advocate Mr. Y.S. Lakhani appearing for the complainant. Learned Senior Advocate would submit that the FIR is not supposed to be an encyclopedia and is not required to contain the minutest details of the events. Learned Senior Advocate would submit that prima facie allegations have been made in the FIR which would show that the petitioner has committed the offence as alleged in the FIR. Learned Senior Advocate would substantiate by submitting that the land in question, while it has been originally purchased in the name of the present petitioner, the entire transaction was at the behest of the partners. Learned Senior Advocate would submit that the partners had decided to purchase the land in the name of the present petitioner and the shares of each of the partners in the land was specifically mentioned in the partnership deed. Learned Senior Advocate would submit that it is undoubtedly true that upon NA Permission being granted for residential purpose, the members of the partnership firm had partitioned the property inter-se and whereas after the same, the partnership firm had been dissolved. Learned Senior Advocate would submit that merely because the partnership firm had been dissolved upon partition of the property, it could not be said that the petitioner upon the NA Permission being cancelled, would become the sole owner of the land in question. Learned Senior Advocate would submit that only on basis of legal fiction the petitioner was shown as owner inasmuch as, the NA Permission on basis of which the partners had partitioned the property had been cancelled by the concerned authority, therefore the land was reverted back to the original status. Learned Senior Advocate would submit that upon the original status of the land being restored, the petitioner was required to exercise his right only as per the partnership deed, more particularly the partnership deed itself was entered into for the purpose of purchasing of the land in question. Learned Senior Advocate would submit that even when partitioning the land in

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question since the share of each of the partners was specifically mentioned in the partnership deed including the share of the petitioner that would be available, the petitioner would not be entitled a part in the property beyond his share. Learned Senior Advocate would submit that insofar as the original status of the land being restored after cancellation of the NA Permission, the land, and dominion over the land had been entrusted to the present petitioner, and whereas such entrustment was for the purpose of discharging the agreement as was understood and agreed upon between the parties as per the partnership deed. Learned Senior Advocate would submit that having sold the land in question in clear violation of the understanding between the parties, the present petitioner had clearly committed an offence of criminal breach of trust. Insofar as the offence of cheating is concerned, learned Senior Advocate would submit that the facts would show that the NA Permission had been cancelled since notice issued by the DDO prior to cancel of the NA Permission was issued in the name of the present petitioner and whereas at the relevant point of time the present petitioner had not informed any of the partners with regard to such notice. Learned Senior Advocate would submit that such fact having been clearly noticed by this Court while deciding the Appeal from Order, more particularly the fact of the petitioner having received the notice but not informed the same to the other partners. Learned Senior Advocate would submit that the petitioner, by his dishonest act, had intentionally not informed the other partners with regard to the said notice resulting in the status of the land changing from non-agricultural to agricultural land. This being done with a fraudulent intention which the petitioner could later on implement i.e. the petitioner having sold the land after the land reverted back in his name. Insofar as the allegation of forgery is concerned, learned Senior Advocate would submit that a portion of the land was, at the relevant point of time, standing in the name of the Government and how such portion of land had

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been sold by the petitioner and what were the documents which were produced by the petitioner to establish his right over the portion of land, is yet to be investigated by the Investigating Officer. Learned Senior Advocate would submit that since the land of the State Government had been sold by the petitioner, therefore allegation of forgery had been made. Learned Senior Advocate would submit that if subsequently after investigation if the Investigating Officer comes to a conclusion that such offence of forgery is not made out, then appropriate action can be taken by the Investigating Officer with regard to the same. Thus submitting, learned Senior Advocate would request that this Court may not interfere with the FIR at this stage.

6. Learned APP Ms. M.D. Mehta for the respondent-State, while adopting the submissions made by learned Senior Advocate Mr. Lakhani, would submit that since the FIR having been preferred on 18.04.2010 and whereas the petitioner having approached this Court immediately thereafter and this Court having granted interim relief in favour of the petitioner which has enured in favour of the petitioner till date, virtually no investigation would have taken place. In any case learned APP would submit that prima facie the offence as alleged having been committed by the petitioner, this Court may not interfere with the FIR.

7. Heard learned Advocates for the respective parties and perused the record.

8. At the outset, it is required to be noted that the learned Co-ordinate Bench of this Court vide order dated 07.05.2010 while issuing Rule, had inter alia noticed the fact of civil proceedings between the parties having reached the Hon'ble Apex Court and the Hon'ble Apex Court having directed all the parties to maintain status-quo prevailing on the date, and since the next date of the matter before the Hon'ble Apex Court was in June, 2010, therefore this Court appears to have entertained the present

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petition and granted interim relief.

9. Having heard the learned Senior Advocates and the learned APP and upon perusing the documents, insofar as the merits of the issue are concerned, at the outset this Court observes that the transaction in question with regard to which the FIR had been filed cannot be stated to be the transaction which had taken place before the NA Permission was granted and the partnership firm was dissolved. In the considered opinion of this Court, the said aspect has to be considered in perspective of the allegations and the very peculiar facts situation of this case. In the considered opinion of this Court, there were two separate transactions in question. The first transaction is with regard to the partnership deed having been entered into between the parties and upon the aim of the partners being achieved after the land was converted from agricultural land into non-agricultural use and partitioning the property amongst the partners, the partnership firm had been dissolved. The second transaction was after the notice for cancellation of NA Permission issued by DDO, which NA Permission subsequently had been cancelled by the DDO, whereafter the land stood reverted back to original status of agricultural land, consequently the petitioner was shown as sole owner of the land in question. In the considered opinion of this Court, the second transaction though being closely connected with the first transaction could not be stated to be a part of the first transaction. In the considered opinion of this Court, the NA Permission being cancelled by the DDO, while the land reverted back to his original status as agricultural land and the land was also reverted back in the name of the present petitioner who is shown to be sole owner of the land, but at the same time the rights of the petitioner upon the land would also revert back to its original status would be governed by partnership deed irrespective of the fact that the partnership firm had been dissolved upon the aim of the partners having been achieved. While holding as above, it is required to be noted that such

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conclusions are arrived at, in the considered opinion of this Court, since the facts of this case are very peculiar.

10. Having appreciated the nature of a transaction, before considering whether ingredients of offence punishable under Sections 406 and 420 of the IPC are prima facie made out, it would be apposite to refer to observations of the Hon'ble Apex Court in case of Balram Khumavat Vs. Union of India, reported in (2003) 7 SCC 628. Para No.23 of the said decision being relevant, the same is reproduced hereinbelow for benefit.

"23. Furthermore, even in relation to a penal statute any narrow and pedantic, literal and lexical construction may not always be given effect to. The law would have to be interpreted having regard to the subject matter of the offence and the object of the law it seeks to achieve. The purpose of the law is not to allow the offender to sneak out of the meshes of law. Criminal Jurisprudence does not say so."

11. While it is true that in the present case this Court is not called upon to interpret any provisions of law, but at the same time, the above quoted observations of the Hon'ble Apex Court have been relied upon to emphasize that the purpose of the law, as laid down by the Hon'ble Apex Court, is not to allow the offender to sneak out of the meshes of law. Law would have to be interpreted having regard to the subject matter of the offence and the object of the law it seeks to achieve.

12. In the instant case, insofar as the offence punishable under Section 420 of the IPC is concerned, it would be required to note that a strict view would result in the petitioner sneaking out of the meshes of law, even though it is apparent that the petitioner had committed an illegal act. Insofar as the offence punishable under Section 420 of the IPC, as observed by the Hon'ble Apex Court in various judgments, the essential requirement is that the intent of the accused should be to defraud from the inception of the

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transaction. Strictly going by the said proposition, one may be inclined to accept the submission by learned Senior Advocate for the petitioner that there was no such intention from the inception of the transaction, but at the same time, what is required to be noted here is that the facts of the present case are as peculiar as they can be. As discussed hereinabove, in the instant case there are not one but two separate transactions. The first transaction whereby the land had been purchased in the name of the petitioner, whereafter NA Permission had been sought for and granted, whereafter the parties had partitioned the land and taken possession of their respective share in the land and the partition deed coming to an end upon fulfillment of its aims. The first transaction ended at that stage. Thereafter, the second transaction comes into question, which is complained about the petitioner, after having received a show cause-notice from the DDO, Rajkot, for cancellation of the NA Permission, did not inform the other partners/co- owners, as noted by this Court in the judgment dated 14.12.2009 in the Appeal from Order preferred by the respondent No.2 against the order of learned Civil Court refusing to grant of interim injunction. Para 31 of the said judgment is also reproduced hereinbelow for benefit.

"31. The conduct of the respondent No.1 is blameworthy. He is thoroughly a dishonest person. He misused his fiduciary position. Other partners including the appellants have put trust in him and allowed the suit property to be purchased in his name. Though he has not contributed anything by way of capital contribution in the firm, his share was fixed at ½ (half) Anna. After the N. A. Permission was granted the suit property was agreed to be partitioned. Though he had signed the partition deed, he did not appear before the registering authority. Despite receipt of show cause notice from D.D.O. Rajkot for cancellation of N. A. Permission, he did not inform other partners/co-owners. To receive benefit under ULC Act, he has shown his ½ (half) Anna share in the suit property, but, no sooner the Repeal Act came into force, he claimed exclusive

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ownership on the suit property and sold away the same behind the back of other partners including the appellants. As if this is not enough, on the very same day, suit property was agreed to be retransferred in favour of the wife of the respondent No.1. If this is the conduct of the respondent No.1 and his ill-intention is apparent on the fact of it, the trial Court should have restrained him from achieving his improper, illegal and unlawful object. The Apex Court, time and again, held that while considering the application for grant of injunction, the Court will not only take into consideration the basic elements in relation thereto, viz. Existence of prima facie case, balance of convenience and irreparable injury. It must also take into consideration the conduct of the parties. The grant of injunction is an equitable relief and hence a party invoking the jurisdiction of the Court or opposing such application for interim relief, has to show that he himself was not responsible for bringing about the state of things complained of or providing cause to make such complaint against him and that he was not unfair or inequitable in his dealings with the parties against whom he was seeking relief or parties against whom he was opposing to grant such relief. If these parameters laid down by the Courts are kept in mind, it is difficult to accept that the conduct of the respondent No.1 is free from any blame and hence the Court does not approve the impugned order and judgment of the trial Court."

13. Though the NA Permission had been cancelled in the year 1976, in the same year the Urban Land (Ceiling and Regulation) Act, 1976 had come into force and the land in question was subjected to the said Act. In the proceedings under the said Act, each partners had shown their holding with regard to the said land as corresponding to the individual share in the property as agreed by them in the partnership deed and whereas the petitioner in the said form had not claimed that he was absolute owner of the entire land and that he had only disclosed his share of "Half and Aana". That the competent authority having considered the entire suit property is

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of the ownership of the petitioner inspite of the petitioner having contended otherwise, the complainant had preferred appeal before the Urban Land Tribunal, who vide its order dated 30.10.1996 allowed the appeal of the respondent No.2 and set aside the order of the competent authority. During the interregnum, after the proceedings had remained inconclusive, taking advantage of the Urban Land Ceiling Repeal Act, the petitioner had sold of the land in the year 2007. Thus, it appears that the petitioner had in the second transaction deceived the respondent which deception had led to the property being delivered to him upon the cancellation of the NA Permission and thereupon caused damage to the persons so deceived.

14. In view of the above discussion, in the considered opinion of this Court, more particularly appreciating the transactions in exclusion of each other, it is apparent that the petitioner has prima facie committed an offence of cheating.

15. It would be further relevant to mention here that Section 415 of the IPC defines the term cheating and whereas the definition inter alia states about the person so deceived to doing or omitting to do anything which he would not do or omit if he were not so deceived and such act or omission causes or is likely to cause damage to the person or property. In the instant case by not informing the partners/co-owners about the notice of DDO, Rajkot for cancellation of NA Permission, the petitioner had intentionally deceived the co-owners who did not question the proposed cancellation and whereas upon cancellation, the property which though had been purchased by using common funds of the partnership in which the petitioner had not contributed a single penny and had been allotted to each partner as per the terms of the partnership deed, reverted back as a whole in the name of the petitioner. It was only by sheer fortuitous circumstances that ULC Act was promulgated in that very year which had resulted in proceedings initiated in the said Act with regard to the land in question also and whereas upon the

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Act being repealed, the petitioner had immediately sold of the land in question. Therefore also it becomes clear that the petitioner had prima facie committed the offence of cheating.

While it is undoubtedly true that the Hon'ble Supreme Court in context of an offence punishable under Section 420 of the IPC has laid down the law which is settled that intention of the accused has to be seen from the inception of the transaction, but at the same time, the law laid down by the Hon'ble Apex Court is always required to be read in context of the facts in question. In the considered opinion of this Court while at the first set of transaction, the petitioner did not have any dishonest intention to defraud the complainant, but the second transaction which had taken place i.e. the NA Permission being cancelled by the DDO, prima facie appears to have happened on account of dishonest and fraudulent intent of the petitioner herein. It appears that at the relevant point of time, when the DDO had issued the notice to the petitioner calling upon him as to why NA Permission ought not to be cancelled, neither the said authority had issued notice to other shareholders in the land in question nor the petitioner brought this very important aspect to the notice of the other shareholders. This, in the considered opinion of this Court, was with a view to facilitate the dishonest intention of the petitioner to misappropriate the land in question. The land having reverted back in favour of the present petitioner, the present petitioner having thereafter sold part of the land to a third party and part of the land to his own wife would clearly go to show that the petitioner in the said part of the transaction as noted by this Court, was moved/motivated by dishonest intention.

16. Insofar as the criminal breach of trust is concerned, the said offence has been defined at Section 405 of the IPC and whereas it is clear from the definition that the petitioner has committed an offence punishable under Section 406 of the IPC. The fact of the land having been purchased by a

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group of people having contributed for achieving the said aim is undeniable. It is not even the case of the petitioner that he is the sole owner of the land on account of having paid the consideration to the original owners. That the land originally having been purchased with a object to convert the same into non-agricultural use and distribute the same among the contributors, the present petitioner, though was shown as legal owner of the land, more particularly on account of the land having been purchased in his name at the first instance, the petitioner as such did not have any right, to have dealt with the land except in terms of the agreement between the parties as was found in the partnership deed. The petitioner, in the considered opinion of this Court, was entrusted with the property or dominion over the property and whereas the property was to be disposed of or distributed in the mode as was understood in the partnership agreement between the parties and whereas the petitioner having disposed of the property in question in complete violation of the agreement between the parties in the partnership deed, in the considered opinion of this Court, appears to have committed an act of criminal breach of trust.

In the considered opinion of this Court, upon the NA Permission being cancelled, though the land had reverted to its original status as an agricultural land and also reverted in the name of the petitioner, the petitioner would be bound by the terms of the registered partnership agreement, whereby he had entrusted with dominion over the property and whereas upon selling of the land to third parties, the petitioner had dishonestly misappropriated the land in violation of the legal contract, (express or implied) i.e. the partnership deed even if it were to be considered as having become non-existent upon the partnership being dissolved upon the aim being achieved. Thus, apparently the petitioner had prima facie committed the offence of criminal breach of trust.

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17. Insofar as the forgery is concerned, there does not appear to be any forged document made by the petitioner, more particularly the allegation being that he had sold of some portion of the land which stood in the name of the Government. Prima facie there does not appear to be any ingredient of forgery in the transaction in question.

18. Insofar as the contention that having filed a Civil Suit, the complaint is not maintainable, this Court proposes to refer to decision of the Hon'ble Apex Court in case of K. Jagdish Vs. Udaya Kumar G.S. and Another, reported in (2020) 14 SCC 552. Para Nos. 8 and 9 of the said decision being relevant, the same are reproduced hereinbelow, for dealing with the submissions of learned Senior Advocate for the petitioner that the dispute is of civil nature.

"8. It is thus well settled that in certain cases the very same set of facts may give rise to remedies in civil as well as in criminal proceedings and even if a civil remedy is availed by a party, he is not precluded from setting in motion the proceedings in criminal law.

9. In Pratibha Rani v. Suraj Kumar this Court summed up the distinction between the two remedies as under:

"21. ............ There are a large number of cases where criminal law and civil law can run side by side. The two remedies are not mutually exclusive but clearly coextensive and essentially differ in their content and consequence. The object of the criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrongdoer in cases like arson, accidents etc. It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and import.

It is not at all intelligible to us to take the stand that if the husband dishonestly misappropriates the stridhan property

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of his wife, though kept in his custody, that would bar prosecution under Section 406 IPC or render the ingredients of Section 405 IPC nugatory or abortive. To say that because the stridhan of a married woman is kept in the custody of her husband, no action against him can be taken as no offence is committed is to override and distort the real intent of the law.""

19. The Hon'ble Apex Court in the above decision has inter alia held that very same set of facts may give rise to remedies in civil as well as in criminal proceedings and whereas it is made clear that even if a civil remedy is availed, the same would not act as a bar for setting in motion the proceedings under criminal law.

20. Insofar as the aspect of the delay, which is raised by learned Senior Advocate Mr. Nanavati, in preferring the FIR, the facts would show that while the complainant had initially preferred a Civil Suit in the year 2007 and whereas the FIR has been filed after approximately 03 years in the year 2010. Insofar as the said aspect is concerned, this Court is inclined to accept the submissions made by learned Senior Advocate for the complainant that while the complainant had initiated proceedings immediately upon coming to know that the petitioner had sold the land, but looking to the peculiar nature of transaction, the complainant took a while to understand the nature of the transaction. In this regard it would be required to be appreciated that prima facie a perusal of the transaction would reveal as if the petitioner has violated a valuable civil right of the complainant i.e. with regard to ownership of the property, but a closer look would reveal that in addition to civil laws, the petitioner has also prima facie committed an offence of criminal breach of trust as well as offence of cheating.

21. At this stage, it would be relevant to refer to observations of the Hon'ble Apex Court in case of Kishan Singh (Dead) through LRs Vs. Gurpal Singh and Others, reported in (2010) 8 SCC 775. Para 22 of the said

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decision being relevant, the same is reproduced hereinbelow for benefit.

"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 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. (vide : Chandrapal Singh & Ors. Vs. Maharaj Singh & Anr., AIR 1982 SC 1238; State of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors., AIR 1992 SC 604; G. Sagar Suri & Anr. Vs. State of U.P. & Ors., AIR 2000 SC 754; and Gorige Pentaiah Vs. State of A.P. & Ors., (2008) 12 SCC 531)."

22. The Hon'ble Apex Court in the above judgment has inter alia held that in case of delay while the Court has to look for a plausible explanation for delay and absence of explanation may be fatal, but at the same time, the Court also is required to examine the facts before it to find out whether a frustrated litigant who failed to succeed before the Civil Court had initiated criminal proceedings to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. In the instant case the facts would show otherwise. That while the complainant had preferred a Civil Suit on 30.08.2007, along with an application for interim injunction

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and whereas vide an order dated 20.10.2008, the learned Civil Court had been pleased to dismiss the application for interim injunction. The complainant had thereupon preferred an Appeal from Order before this Court and vide judgment dated 14.12.2009, this Court had been pleased to set aside the order passed below Exh. 5 by the learned Civil Court and prayer made in an application for interim injunction had been granted. It appears that the judgment of this Court had been challenged by the petitioner before the Hon'ble Apex Court by preferring SLP (Civil) No. 5502 of 2010 and whereas in the order dated 12.03.2010 passed by the Hon'ble Apex Court, the learned counsel appearing for the petitioner herein had made a statement that his client will feel satisfied if the injunction order passed by the High Court is confined to the share of the original plaintiffs and time had been granted to the learned counsel appearing for the complainant to take instructions and the matter was listed on 05.04.2010. On 05.04.2010 the Hon'ble Apex Court while issuing Notice had directed the parties to maintain status-quo. It is thereafter that the present impugned FIR came to be filed. From reference to the facts hereinabove, it would be clear that the complainant is not a chagrined litigant who wants to settle score with the petitioner herein, rather it appears that when the impugned FIR had been filed, there was already an injunction granted in favour of the petitioner by this Court and in appeal the Hon'ble Apex Court had directed the parties to maintain status-quo. Thus, on the count of delay, it does not appear that the FIR is intended to be a weapon of harassment and consequently an abuse of the process of law.

23. Insofar as the contention that even on plain reading of the FIR, no offence as alleged is made out, this Court seeks to rely upon the observations of the Hon'ble Apex Court in case of Rajesh Bajaj Vs. State NCT of Delhi, reported in (1999) 3 SCC 259, made at Para Nos. 9, 10, 11 and 12 which read as under :

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"9. It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage. If factual foundation for the offence has been laid in the complaint the court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. For quashing an FIR (a step which is permitted only in extremely rare cases) the information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence. In State of Haryana vs. Bhajan Lal this Court laid down the premise on which the FIR can be quashed in rare cases. The following observations made in the aforesaid decisions are a sound reminder : (SCC p. 379 para 103) "103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."

10. It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions. One of the illustrations set out under Section 415 of the Indian Penal Code (illustrations f) is worthy of notice now:

"(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats."

11. The crux of the postulate is the intention of the person who induces the victim of his representation and not the nature of the

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transaction which would become decisive in discerning whether there was commission of offence or not. The complainant has stated in the body of the complaint that he was induced to believe that respondent would honour payment on receipt of invoices, and that the complainant realised later that the intentions of the respondent were not clear. He also mentioned that respondent after receiving the goods have sold them to others and still he did not pay the money. Such averments would prima facie make out a case for investigation by the authorities.

12. The High Court seems to have adopted a strictly hyper- technical approach and sieved the complaint through a collander of finest gauzes for testing the ingredients under Section 415 , IPC. Such an endeavour may be justified during trial, but certainly not during the stage of investigation. At any rate, it is too premature a stage for the High Court to step in and stall the investigation by declaring that it is a commercial transaction simplicitor wherein no semblance of criminal offence is involved."

24. The learned Senior Advocate for the petitioner has inter alia submitted that offence punishable under Sections 406 and 420 of the IPC are not made out from the complaint and whereas having looked in the complaint and having referred to the judgment of this Court dated 14.12.2009 only for the purpose of appreciating the nature of the transaction, while having come to a prima facie conclusion that the offences have been indeed made out, and whereas as observed by the Hon'ble Apex Court, if factual foundation for the offence has been laid in the complaint the Court should not hasten to quash criminal proceedings during the investigation stage merely on the premise that one of the ingredients having been stated with details. The Hon'ble Apex Court has also held that the Court would not be justified in embarking upon an enquiry as to the genuineness or otherwise of the allegations made in the FIR. The Hon'ble Apex Court has also clearly observed that the fundamental aspect that is required to be noted is the intention of the person and not the nature of the transaction and whereas since it is clear from the discussion hereinabove,

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that the intention of the petitioner was to deceive, the same, in the considered opinion of this Court, would also make out a case for investigation.

25. Having regard to the discussion, reasoning and conclusions hereinabove, the present petition partly succeeds. The impugned FIR being C.R. No.I- 113 of 2010 registered with Malavianagar Police Station, Rajkot, is quashed insofar as the offence punishable under Sections 465, 467 and 468 of the Indian Penal Code is concerned, more particularly with an observation that in case any forgery is detected by the Investigating Officer during the course of investigation, then it would be open for the Investigating Officer to request the learned Magistrate concerned to add the said offence in the FIR.

The present petition stands rejected insofar as the offence punishable under Section 406 and 420 of the Indian Penal Code is concerned.

Rule is made absolute to the aforesaid extent.

26. At this stage learned Senior Advocate Mr. Nanavati for the petitioner would submit that since the interim relief which had been granted by this Court vide order dated 07.05.2010 has enured in favour of the petitioner since then, this judgment may be stayed by this Court.

27. Having regard to the same, the judgment shall remain stayed for a period of eight weeks from the date the judgment is uploaded on the website of the Gujarat High Court.

28. It is further clarified that the observations made hereinabove, have been made for the purpose of deciding the present petition and whereas the Investigating Officer as well as the Trial Court, as the case may be, shall not be influenced by the same at the stage of investigation or at the stage of trial.

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29. In view of the order passed in the main matter, Criminal Misc. Application (For Vacating Interim Relief) No.1 of 2019 would not survive, hence the same is disposed of accordingly.

(NIKHIL S. KARIEL,J) BDSONGARA