Gujarat High Court
Viral Kiranbhai Shah vs State Of Gujarat on 3 January, 2023
Bench: Gita Gopi
R/CR.MA/11992/2018 ORDER DATED: 03/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 11992 of 2018
With
R/CRIMINAL MISC.APPLICATION NO. 11883 of 2018
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VIRAL KIRANBHAI SHAH
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR UMANG R VYAS(5595) for the Applicant(s) No. 1
MR.DHAWAN JAYSWAL APP for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 03/01/2023
COMMON ORAL ORDER
1. By way of the present petitions under
Section 482 of the Code of Criminal Procedure, 1973
(hereinafter referred to as 'the Code'), the Petitioners
have prayed for quashing and setting aside the
impugned FIR bearing I-C.R.No.188 of 2018
registered with Sola High Court Police Station,
Ahmedabad for the offence punishable under Sections
120(B), 405, 418, 466, 467, 468, 471 of the Indian
Penal Code as well as other consequential
proceedings arising out of the aforesaid FIR qua the
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petitioners.
2. Heard learned Senior Counsel Mr.Nirupam
D. Nanavaty, Senior Counsel Mr.Prakash Jani,
Advocate Mr.Yogesh N.Ravani, Advocate Mr.Hriday
Buch, Advocate Mr.Umang R.Vyas, Advocate
Mr.Brijesh K.Ramanaji for the petitioners and
Mr.Dhawan Jayswal, learned APP, for the respondent
State.
3. Senior Advocate Mr.Nanavaty submits that
the petitioners are practicing Advocate of this Hon'ble
Court and were panel Advocate of the Central
Government are challenging the FIR being C.R.No.I-
188 of 2018 dated 23.06.2018 registered with Sola
High Court, Ahmedabad for the offence punishable
under Sections 120(B), 405, 418, 466, 467, 468, 471
of the Indian Penal Code.
3.1 Senior Advocate Mr.Nanavaty submits that
the complainant, who has alleged that Advocate
Ankit S.Shah and Advocate Viral K.Shah, both
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Central Government Standing Counsel in connivance
with each other have forged the signature of
Secretary of NCMEI on the Vakalatnama and had
tendered the same before the Hon'ble High Court
and thereby committed alleged offences as narrated
in the FIR.
3.2 Senior Advocate Mr.Nanavaty submits that
essential ingredients of the alleged offence are not
made out in the FIR and submitted that the
complainant had filed one writ petition before this
Court and had challenged the 'Status' of a school in
which he was initially working as a Teacher. In the
said writ petition being Special Civil Application
No.20948 of 2016, in all there were four respondents.
The said writ petition was presented on 08.12.2016,
which was registered on 15.12.2016 and on different
dates various orders were recorded. Senior Counsel
Mr.Nanavaty further submitted that during pendency
of the matter, the FIR came to be registered against
the Advocate on 23.06.2018, while the Special Civil
Application No.20948 of 2016 with Civil Application
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No.2 of 2018 came to be disposed of on 16.10.2018
and in that matter, the present petitioners had
represented respondent No.1.
3.3 Senior Advocate Mr.Nanavaty submits that
the complainant has falsely implicated the petitioners
in the alleged FIR since no offence has been
committed. The ingredients of Section 405 of the
Indian Penal Code are not made out in the alleged
FIR since the entire body of the FIR does not reflect
any allegation about entrustment, even if the case of
complainant who is present respondent No.2 is to be
considered then the authority i.e. NCMEI has not
suffered any wrongful loss, and therefore, there would
not be any offence as alleged under Section 418 of
the Indian Penal Code.
3.4 Senior Advocate Mr.Nanvaty submits that
the Vakaltnama on which the signature is purported
to have been forged is not a valuable security and
no legal right is transferred or extended with the
help of Vakalatnama. He further submits that the
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documents would not fall within the definition of
'valuable security' as requiring legal right to be
created, extended, transferred etc., whereas
Vakalatnama will only authorize Advocate to
represent the case and will not create any absolute
legal right which can be termed as valuable security.
Thus, no offence under Section 467 of the Indian
Penal Code is made out.
3.5 Senior Advocate Mr.Nanavaty submits that
for the offence to be considered as forgery of a
documents, the ingredients under Section 463 of the
IPC are required to be made out, and, for the
purpose of committing forgery there has to be a
'false document' as defined under Section 464 of the
Indian Penal Code and person is said to make a
false document when alleged act is with dishonest
and fraudulent intention and in absence of the same,
document though created, cannot be termed as false
document more particularly as 'criminal act of
creating false document' and under the definition of
'dishonesty', wrongful gain and wrongful loss are the
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necessary ingredients. Thus, no offence under Sections
467, 468 & 471 of the Indian Penal Code are made
out.
3.6 Senior Advocate Mr.Nanavaty submits that
the Vakaltnama filed by the applicants on behalf of
the authority i.e. NCMEI while the FIR is filed on
the basis of assumption, while the author granting
the Vakaltnama is not making any complaint, and
the complaint would be barred in view of the
provision of Section 195 of the Criminal Procedure
Code.
3.7 Referring to Rule 432 of the Gujarat High
Court Rules, 1993, Mr.Nanavaty submits that the
Rules permit an Advocate on record to instruct
another to appear on his behalf where an advocate
appointed in any of the proceedings is prevented by
reasonable cause from appearing and conducting the
proceedings at any hearing. He further submits that
by way of Notification issued by the Ministry of Law
& Justice Department of Legal Affairs, both the
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Advocates Mr.Viral Shah and Mr.Ankit Shah were
appointed as Standing Counsels of the Central
Government. Hence, in a case where instruction is
given by one panel Advocate to another, the same
act would be protected under The Gujarat High
Court Rules, 1993.
4. The complaint dated 23.06.2018 registered
before the Sola High Court Police Station,
Ahmedabad City is with the facts and allegations
that the complainant at the time of the complaint,
was unemployed and earlier he was a teacher in
St.Xavier's Loyola School, Naranpura. He has alleged
that he was wrongly suspended from the school in
the year 2013, and therefore, he had filed appeal
being Appeal No.146 of 2016 before the Tribunal,
where the order was passed in his favour in
December, 2015, against that, St. Xavier's Loyola
School, Naranpura, Ahmedabad had preferred an
Appeal as SCA No.1069 of 2016 and against that,
LPA No.1237 of 2016 was moved, whereby the
matter was remanded back to the Education
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Tribunal.
4.1 The complainant further states that since
he wanted to inquire whether St. Xavier's Loyola
School has Minority status he had procured necessary
documents from the Charity Commissioner. He
further states that in the matter filed by him as
Special Civil Application No.20948 of 2016, for
National Commission Minority Education Institution
(NCMEI), Advocate Ankit Shah was appointed, who
had filed Vakalatnama on 05.06.2017, and on that
Vakalatnama produced at Gujarat High Court, Dy.
Secretary Sandip Jain had put his signature and seal
for NCMEI. It is alleged that inspite of knowing the
fact that the matter was listed before a particular
Bench, Vakaltnama was produced in the said Court.
The complainant further stated that 'Not Before Me'
note was placed, thus in Special Civil Application
No.20948 of 2016, Advocate Mr.Viral K. Shah, on
06.11.2017 appeared on behalf of NCMEI in place of
Mr.Ankit S. Shah, and thereafter on 16.11.2017 had
produced his Vakaltnama and on the said, 'No
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Objection' endorsement was placed by Advocate Mr.
Ankit S. Shah on 15.11.2017.
4.2 It is alleged by the complainant that on the
Vakaltnama dated 16.11.2017, there was signature
of the authority of NCMEI which was similar to the
signature of Sandip Jain, Dy. Secretary placed on
Vakaltnama in favour of Ankit Shah dated
05.06.2017. The complainant alleged that
Vakalatnama which was produced by Advocate Viral
K. Shah was found doubtful by him since below the
signature, the expression of words 'Secretary,
National Commission for Minority Education',
respondent No.1 was handwritten and thus, he
applied for the certified copy of both the
Vakalatnama, and thereafter he applied before the
NCMEI under the Right to Information Act and as
per the reply of Secretary, Smt. Saroj Punhani
correspondence No.10-17/2017-NCMEI/1707 dated
__/04/2018 correspondence sent to him on 06.04.2018
by email, and letter was also received by post,
wherein the complainant states that Saroj Punhani
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has clarified that on behalf of Commission, Dy.
Secretary, Shri Sandip Jain with the signature and
seal dated 30.05.2017 has appointed Ankit Shah as
an Advocate for NCMEI, and Advocate Viral Shah
was never appointed by them, and no such
Vakaltnama was given in his favour and that she
had not put her signature on Vakaltnama and any
such signature is false. Thus, according to the
complainant when no such authority had been given
to Advocate Viral Shah and when appointment was
only of Advocate Ankit Shah by NCMEI, and when
the authority does not affirm the signature, both the
Advocates with an ill intention to cheat and to
defraud has produced the Vakaltnama dated
16.10.2017 with the forged signature and though both
Advocates Ankit Shah and Viral Shah have been
appointed as Standing Counsel of Hon'ble Gujarat
High Court by Central Government, they have
committed a serious offence, and inspite of the fact
that no oral/written communication was with Ankit
Shah by NCMEI, it is alleged that Advocate Ankit
Shah on the Vakaltnama dated 16.11.2017 had put
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up his endorsement by putting NOC dated 15.11.2017
and has committed criminal breach of trust with
NCMEI.
4.3 The complainant has relied on certain
documents of his RTI application and sample
signature of the Secretary of NCMEI. The
Notification dated 21.08.2017 appointing Smt. Saroj
Punhani as Secretary of NCMEI along with charge
assumption report dated 14.07.2017.
5. Mr.Dhawan Jayswal, learned APP submits
that as per the practice adopting the Rules of The
Gujarat High Court, when appointed Advocate is
representing the matter in the Court as a matter of
practice, convenience and respect to the authority and
commitment to the profession when because of same
reason the Advocate on record cannot appear before
the concerned Court would instruct another Advocate
to appear on his behalf and conduct the proceedings
at any hearing and thus, submitted that adherence
to Rule 432 is mandated, and therefore, any act of
instructing other Advocate to represent him would
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not be any professional misconduct nor would be
against professional ethics. Signature authorising an
Advocate to represent the matter is transaction
between the client and Advocate and he submitted
that it is a work of entrustment and thus, would be
governed by the provisions under Section 126 of the
Indian Evidence Act, 1872, but however submits that
if at all any fact is brought to the notice of the
police of any forgery or cheating, then FIR is
required to be filed and thus, urged that the FIR
should not be quashed at the initial stage.
6. The Notification being F.No.36(8)/2015-Judt.
issued by the Ministry of Law & Justice, Department
of Legal Affairs, Judicial Section by an order dated
06.04.2015 in super-session of all earlier orders
relating to Senior Panel Counsels and Central
Government Counsels in High Court of Gujarat at
Ahmedabad and Senior Central Government Standing
Counsel in Central Administrative Tribunal,
Ahmedabad Bench, the President was pleased to
engage 31 Advocates for conducting the Central
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Government litigations before the High Court of
Ahmedabad with immediate effect for a period of
three years or until further orders and had appointed
about five advocates as Additional Central
Government Standing Counsel for Central
Administrative Tribunal, Ahmedabad Bench. The
name of the present petitioners Mr.Ankit Shah and
Mr.Viral Shah reflect at Serial No.1 & 5 respectively.
By order dated 06.04.2015, the petitioners were
appointed on panel for representing the Central
Government litigations in the Central Administrative
Tribunal, Ahmedabad. As per the complaint, Advocate
Ankit Shah was authorised by way of Vakaltnama to
represent the matter in Special Civil Application
No.20948 of 2016 on behalf of National Commission
for Minority Education. The complaint suggests that
the matter came up before a Court where panel
Advocate Mr.Ankit S.Shah could not appear though
was authorised by way of Vakaltnama, the matter
was thereafter transferred as was under the note
'Not before this Court' and it is alleged that
without instruction on 06.11.2017, Advocate Viral K.
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Shah appeared for NCMEI. On 16.11.2017, Advocate
Ankit Shah had put his endorsement as NOC.
7. Senior Advocate Mr.Nanavaty had submitted
that Mr.Ankit S. Shah could not appear before that
particular Court, Mr.Viral K.Shah, who was at the
panel was instructed by Mr.Ankit S.Shah to
represent the matter before another Bench and not
even before the same Bench, ultimately, Mr.Nanvaty
submitted that on 16.10.2018, Special Civil
Application No.20948 of 2016 came to be disposed of
and Notice was discharged and connected Civil
Application was found to be disposed of as did not
survive and during that continuous period, Advocate
Mr.Viral Shah represented NCMEI.
8. Rule 432 of The Gujarat High Court Rules,
1993, reads as under:-
'432. An Advocate may instruct another
to appear:- Where an advocate appointed
by a party in any of the proceedings is
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prevented by reasonable cause from
appearing and conducting the
proceedings at any hearing, he may
instruct another advocate to appear for
him at that hearing.'
9. Rule provides that in case where an
Advocate appointed by a party in any of the
proceedings is prevented by reasonable cause from
appearing and conducting the proceedings and he
may instruct another Advocate to appear for him at
any hearing. Here, in this case, Advocate Mr.Ankit S.
Shah could not appear though was instructed by
NCMEI by way of Vakaltnama to represent before
the Court but he had reasonable cause not to appear
before the said Court, where the matter was placed
for hearing and since Advocate Viral Shah was also
panelist and has authority to conduct the Central
Government litigation before the High Court of
Gujarat at Ahmedabad, he was instructed to appear
and conduct the proceedings.
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10. The act of Mr.Ankit Shah petitioner of
Criminal Misc. Application No.11883 of 2018,
appointing Advocate Mr.Viral Shah petitioner of
Criminal Misc. Application No.11992 of 2018, is in
consonance with the Rules of the Gujarat High
Court. There is no any case of misconduct or
misbehavior nor could be considered as against the
professional ethics or even further it could not be
considered as was against the order of the
Department of Legal Affairs, Law & Justice, Judicial
Section. It is also to be noted that during the whole
process till the disposal of the matter on 16.10.2018,
NCMEI had not objected to the representation made
by advocate Mr.Viral K.Shah on their behalf.
10.1 Appearance of Advocate Mr.Viral Shah is
reflected in the order of Special Civil Application
No.20948 of 2016. The complaint is dated 23.06.2018
for the offence punishable under Sections 120(B), 405,
418, 466, 467, 468, 471 of the Indian Penal Code.
Reliance has been placed by Mr.Nanavaty in the case
of Avadhoot Vishwanath Sumant Vs. State of Gujarat &
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Ors. decided on 27.10.2021 in SCA No.2424 of 2016,
whereby this Court had an occasion to deal with the
matter by a practicing lawyer.
10.2 Referring to the facts of the case, this
Court has dealt with the case where the allegation
was that the party had never engaged the petitioner
as a lawyer and under Sections 406, 420, 465, 467,
470, 471 and 114 of the Indian Penal Code,
complaint came to be filed before the Police Station.
10.3 Observation made in the case of Mohammed
Ibrahim & Ors. Vs State of Bihar & another reported
in (2009) 8 SCC 751, has been reflected. Relevant
paras of Mohammed Ibrahim's case are 13, 14, 15,
16, 17, 18 19, 20, 21 & 22 as under:
"13. The condition precedent for an offence
under sections 467 and 471 is forgery. The
condition precedent for forgery is making a
false document (or false electronic record or
part thereof). This case does not relate to any
false electronic record. Therefore, the question
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is whether the first accused, in executing and
registering the two sale deeds purporting to
sell a property (even if it is assumed that it
did not belong to him), can be said to have
made and executed false documents, in
collusion with the other accused.
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
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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 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 authorised 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.
15. The sale deeds executed by first appellant,
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clearly and obviously do not fall under the
second and third categories of `false
documents'. It therefore remains to be seen
whether the claim of the complainant that the
execution of sale deeds by the first accused,
who was in no way connected with the land,
amounted to committing forgery of the
documents with the intention of taking
possession of complainant's land (and that
accused 2 to 5 as the purchaser, witness,
scribe and stamp vendor colluded with first
accused in execution and registration of the
said sale deeds) would bring the case under
the first category.
16. There is a 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 authorised
or empowered by the owner, to execute the
deed on owner's behalf. When a person
executes a document conveying a property
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describing it as his, there are two possibilities.
The first is that he 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 whom or by whose authority he knows that
it was not made or executed.
17. When a document is executed by a person
claiming a property which is not his, he is not
claiming that he is someone else nor is he
claiming that he is authorised by someone else.
Therefore, execution of such document
(purporting to convey some property of which
he is not the owner) is not execution of a
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false document as defined under section 464 of
the Code. If what is executed is not a false
document, there is no forgery. If there is no
forgery, then neither section 467 nor section
471 of the Code are attracted.
18. Let us now examine whether the
ingredients of an offence of cheating are made
out. The essential ingredients of the offence of
"cheating" are as follows:
(i) deception of a person either by
making a false or misleading
representation or by dishonest
concealment or by any other act or
omission;
(ii) fraudulent or dishonest inducement of
that person to either deliver any property
or to consent to the retention thereof by
any person or to intentionally induce that
person so deceived to do or omit to do
anything which he would not do or omit
if he were not so deceived; and
(iii) such act or omission causing or is
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likely to cause damage or harm to that
person in body, mind, reputation or
property.
19. To constitute an offence under section 420,
there should not only be cheating, but as a
consequence of such cheating, the accused
should have dishonestly induced the person
deceived
(i) to deliver any property to any person,
or
(ii) to make, alter or destroy wholly or in
part a valuable security (or anything
signed or sealed and which is capable of
being converted into a valuable security).
20. When a sale deed is executed conveying a
property claiming ownership thereto, it may be
possible for the purchaser under such sale
deed, to allege that the vendor has cheated
him by making a false representation of
ownership and fraudulently induced him to
part with the sale consideration. But in this
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case the complaint is not by the purchaser. On
the other hand, the purchaser is made a co-
accused.
21. It is not the case of the complainant that
any of the accused tried to deceive him either
by making a false or misleading representation
or by any other action or omission, nor is it
his case that they offered him any fraudulent
or dishonest inducement to deliver any
property or to consent to the retention thereof
by any person or to intentionally induce him
to do or omit to do anything which he would
not do or omit if he were not so deceived. Nor
did the complainant allege that the first
appellant pretended to be the complainant
while executing the sale deeds. Therefore, it
cannot be said that the first accused by the
act of executing sale deeds in favour of the
second accused or the second accused by
reason of being the purchaser, or the third,
fourth and fifth accused, by reason of being
the witness, scribe and stamp vendor in regard
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to the sale deeds, deceived the complainant in
any manner.
22. As the ingredients of cheating as stated in
section 415 are not found, it cannot be said
that there was an offence punishable under
sections 417, 418, 419 or 420 of the Code.
11. The definition under Section 470 of the
Indian Penal Code, clarifies about the forged
documents. The term 'forgery' is made explicit under
Section 463 of the Indian Penal Code which explains
that whenever any forged documents is made 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 express or implied, contract or with intent to
commit fraud or that fraud may be committed, would
be considered as forgery.
12. Here, in this case, the Vakalatnama which
had been produced, is alleged to be under the forged
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signature of the authority, whereunder through RTI
the complainant had tried to sought clarification from
the authority concerned about signature on the
Vakaltnama produced by Advocate Mr.Viral K. Shah
and the information sought through RTI, was replied
by the Information Officer, Ms. Saroj Punhani
informing that she had not put her signature on the
Vakaltnama and she has further clarified to the
complainant that it is not her signature and that
NCMEI has not appointed Advocate Mr.Viral K.Shah.
12.1 The FIR does not disclose the fact of any
information sought for from Dy. Secretary Sandip
Jain, under whose signature Vakalatnama of
Advocate Mr.Ankit S.Shah dated 05.06.2017 was
produced, and as alleged, the Vakaltnama of
Advocate Mr.Viral Shah was with forged signature of
the authority and thereunder 'Secretary, National
Commission for Minority of Education', respondent
No.1 herein, was handwritten. The very fact does not
disclose any forgery, since the signature on the
Vakaltnama, as alleged, was not disputed nor any
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forgery could be considered by making false
document. The only fact which would be of concern
is the signature put on the Vakaltanam of Advocate
Mr.Viral K. Shah. While the RTI reply suggests that
Advocate Mr.Viral K. Shah was not appointed. The
said reply would run contrary to the order dated
06.04.2015 of Ministry of Law and Justice,
Department of Legal Affairs, since all the panel
Advocates were engaged to conduct the litigation
pertaining to Central Government before the High
Court of Gujarat. Name of petitioner Mr. Ankit S.
Shah reflects at Serial No.1 and Petitioner Mr.Viral
K. Shah reflects at serial No.5.
13. Rule 432 of the Gujarat High Court Rules,
1993 itself directs an Advocate to instruct another to
appear in the proceedings in case of reasonable cause
preventing from appearing and conducting the
proceedings. Therefore, the instruction given by
Advocate Mr.Ankit Shah to Advocate Mr.Viral Shah
to appear is neither illegal nor would be against the
provisions of law nor would be even consider as
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against the professional ethics, rather the Act is as
mandated by the Rules of this Court.
14. In the case of Dr. Vimla Vs. Delhi
Administration, reported in 1963(2) CRI.L.J. 434: AIR
1962 SCC 157 (2), the Apex Court had dealt with
the meaning 'Defraud'. A Division Bench of the
Bombay High Court in Sanjiv Ratnappa Vs. Emperor,
AIR 1932 Bom 545 at page 550 had also occasion to
consider the scope of expression "fraudulently" in
Section 464 of the Indian Penal Code. The Court
held that for an act to be fraudulent, there must be
some advantage on the one side with a corresponding
loss on the other.
15. Here, in this case, the complainant has
failed to show or demonstrate as to how the
appearance of Advocate Mr.Viral K. Shah instead of
Advocate Mr.Ankit S. Shah has caused any loss to
him or for that matter to NCMEI. Both the
petitioners are authorised by way of order of the
Ministry of Law & Justice, Department of Legal
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Affairs, Judicial Section, dated 06.04.2015 to appear
and conduct the Central Government's litigation
before the High Court of Gujarat. Even without any
Vakaltnama signed himself by NCMEI, Advocate
Viral K. Shah would have appeared upon instruction
of Advocate Ankit S.Shah by complying Rule 432 of
The Gujarat High Court Rules. Even, if it is
considered that the signature on the Vakaltnama
placed by Advocate Mr.Viral K. Shah was not of a
person authorised him; though the record does not
suggests that, since Dy. Secretary Sandip Jain has
not denied the said fact but even if it is considered
that the signature on Vakaltnama placed by Advocate
Viral K.Shah was not of Dy. Secretary Sandip Jain,
there would not be any cause of forgery or fraud.
15.1 In the case on hand, all the Sections
invoked against the petitioner presupposes the
existence of forgery. The condition precedent for
forgery is making a false document. The definition of
"false document" is a part of definition of "forgery".
Both must be read together. If so read, the
R/CR.MA/11992/2018 ORDER DATED: 03/01/2023
ingredients of offence of forgery would be; (1)
fraudulently signing a document or a part of a
document with an intention of causing it to be
believed that such document or part of a document
was signed by another or under his authority; (2)
making of such a document with an intention to
commit fraud or that fraud may be committed.
16. Fraud is made up of two ingredients i.e.
deceit and injury. The principal object of every
fraudulent person is to derive some advantage though
such advantage has a corresponding loss or risk of
loss to another. What benefit the petitioner derived
and what injury the complainant sustained could not
be found from the bare reading of FIR.
17. Thus, this Court has even considered that
there was no intention of both the petitioners to
cause any wrongful loss to NCMEI, nor any intention
to derive any advantage or to cause any
corresponding loss or risk of loss to NCMEI. The
present complainant had even no cause to file FIR
R/CR.MA/11992/2018 ORDER DATED: 03/01/2023
since both the petitioners were representing as
Advocates for the respondent - NCMEI in Special
Civil Application No.20948 of 2016, which has been
filed by the complainant. There would be no cause to
commit any fraud to him or wrongful loss to the
complainant, as petitioners were duty bond to
represent NCMEI.
18. In case of State of Haryana V. Bhajan Lal
and others, AIR (1992) SC 604, the Apex Court
formulated as many as seven categories of cases,
wherein the extraordinary power under Section 482
could be exercised by the High Court to prevent
abuse of process of the court. It was clarified that it
was not possible to lay down precise and inflexible
guidelines or any rigid formula or to give an
exhaustive list of circumstances in which such power
could be exercised. 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
R/CR.MA/11992/2018 ORDER DATED: 03/01/2023
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
R/CR.MA/11992/2018 ORDER DATED: 03/01/2023
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
R/CR.MA/11992/2018 ORDER DATED: 03/01/2023
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;
(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."
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19. Relying the judgment laid down in the case
of Bhajanlal (supra), the present FIR, which is abuse
of process of law and has been filed with an ulterior
motive should not be permitted to stand and require
to be quashed at the initial stage.
20. Resultantly, the present applications are
allowed and the impugned FIR bearing I-C.R.No.188
of 2018 registered with Sola High Court Police
Station, Ahmedabad and all other consequential
proceedings arising out of the aforesaid FIR are also
quashed and set aside qua the present petitioners.
Office to keep copy of this order in
Criminal Misc. Application No.11883 of 2018.
(GITA GOPI,J)
MANOJ
