Ghanshyambhai Navalkishorebhai ... vs State Of Gujarat
2023 Latest Caselaw 709 Guj

     R/CR.MA/20004/2017                          JUDGMENT DATED: 30/01/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC. APPLICATION NO. 20004 of 2017


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI
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1      Whether Reporters of Local Papers may be allowed              No
       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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                  GHANSHYAMBHAI NAVALKISHOREBHAI JAGAD
                                 Versus
                       STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MR YATIN SONI(868) for the Applicant(s) No. 1
MR. HARDIK MEHTA, APP for the Respondent(s) No. 1
RULE SERVED THRU CONCERNED POLICE STN for the Respondent(s)
No. 2
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                             Date : 30/01/2023
                             ORAL JUDGMENT

1. This application has been filed under Section 482 of the Code

of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") for

quashing the FIR bearing CR No.I- 29/2017 registered with

Gangajaliya Police Station, District - Bhavnagar for offences

R/CR.MA/20004/2017 JUDGMENT DATED: 30/01/2023

punishable under sections 406, 420, 467, 468, 471, 192 and 114 of

the IPC and to terminate all the subsequent proceedings in

connection with the FIR.

2. The prayer is made by the applicant - original accused No.6,

who is a practitioner-advocate since 2009. It is stated by the

applicant that he is practicing in the trial Court mainly on the

revenue side and he wass a junior advocate at the time, when the

FIR was registered. It is also stated that the applicant had

discharged his professional duty by drafting two affidavits and two

sale deeds, for that work he was paid fees of Rs.5,000/-.

3. As per the FIR, complainant - Gopalbhai Hiralal Mehta and his

wife are residing together with their son Paragbhai and another son

Ketanbhai is staying in U.S.A. since last 10 years prior to the

complaint. As per the complainant, the accused persons committed

offence of forgery and cheating by executing forged documents,

wherein, it is shown that he and his wife are dead and forged

pedhinama was prepared and on the basis of forged will and

heirship affidavit, some fictitious persons had executed two sale

deeds with regard to two plots bearing nos. 80 and 81 situated at

Bhavnagar Sidhsar, land revenue survey no. 98 /2 and thereby, all

accused persons jointly committed offence of forgery and cheating.

On the basis of the information, the FIR was registered for the

offence punishable under Sections 406, 420, 467, 468, 471, 192 and

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114 of the Indian Penal Code.

4. Learned advocate Mr. Yatin Soni for the applicant submitted

that the present applicant has performed only his professional duty.

He also submits that the allegations against him is that the co-

accused is identified by him as Mr. Ketan Gopalbhai Mehta, who

came with forged documents including his forged identity proof.

Learned advocate Mr. Soni submits that the co -accused was

recommended and have came with another advocate Mr. Ashvin M.

Chauhan and accordingly the applicant under a bona- fide belief

prepared two affidavits of heirship and two sale deeds as per the

documents viz. Certificate of legal heirs, Election card, Original will,

Death Certificate of Hemaben and Gopalbhai and the Panchnama of

Pedhinama and Public Notice published in the Sandesh Newspaper.

Learned advocate Mr. Soni submitted that as per information

provided to applicant he as an advocate had considered the said

person as genuine, as he was introduced by one advocate Mr.

Ashvin M. Chauhan.

5. Learned advocate Mr. Soni submits that one co-accused Mr.

Ajay had purchased stamp papers in his name and while purchasing

the same, Mr. Ajay had signed on behalf of the applicant. He also

submits that the applicant was not at all aware that the alleged

documents were forged one and fictitious person had approached

him through advocate Mr. Ashvin M. Chauhan. It is further submitted

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that the applicant was not knowing Mr. Ajay, who had purchased

stamp papers on behalf of the applicant and the fictitious person Mr.

Ketan Gopalbhai Mehta, who had signed as Mr. Ketan Gopalbhai

Mehta.

6. Learned advocate Mr. Soni submits that the original owners

has filed two suits being Regular Civil Suit Nos. 207 / 2017 and 208 /

2017, in the Court of Hon'ble Principal Senior Civil Judge at

Bhavnagar and the suits are allowed as purchaser had given

consent in favour of plaintiffs and on the basis of the consent term

decree was drawn.

7. Learned advocate Mr. Soni has placed reliance upon the

judgments, in the case of Hira Lal Jain Vs. Delhi

Administration, reported in (1973) 3 SCC 398, in the case of

Hazara Singh vs. Union of India and Others, reported in (1973)

3 SCC 401, in the case of State of Gujarat vs. Kirtikumar

Nandlal Koticha reported in 2019 JX (Guj) 1263, in the case of

Rameshbhai Vallabhbhai Korat Vs. State of Gujarat reported

in 2014 (3) GLR 2653, in case of Pravinsinh K. Raol vs. State of

Gujarat reported in 2014 JX (Guj) 538, in case of Girishbhai

Jashwantlal Bhatt vs. State of Gujarat, reported in 2011 JX (Guj)

887.

8. Learned advocate Mr. Soni has placed reliance on the above

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judgments and submitted that the lawyer is an officer of the Court,

and during the course of his practice, he has to identify the person

and for that, he was not duty bound to know the sureties, only on

the basis of the documents provided by the person to identify him

the advocates considered Ketan Mehta as genuine. Learned

advocate Mr. Soni also submits that generally the main income of

some of the lawyers in trial Court is derived from identification of

surety in the Court, and for that the lawyers are not duty bound to

check correctness of the persons and the advocate is not expected

to work as a Police to investigate the genuiness of the documents.

Learned advocate Mr. Soni submits that here in this case, no role

was played by the advocate in allegedly having prepared or forged

or fabricated documents in form of identification of the person, who

has identified himself as Ketan Gopalbhai Mehta. Under instructions

applicant had drawn the sale deed and the heirship affidavits and

for that he was paid Rs.5,000/-.

9. Learned APP Mr. Mehta for the respondent - State relying on

the report of the Police Inspector of Gangajaliya Police Station,

District - Bhavnagar submitted that allegation against the present

application is of identifying the deponent of the affidavit before

Notary - Narendrabhai Vyas being the affidavit Nos. 5592/2015 and

5593 / 2015 and said affidavits were registered on 10.03.2015. As

per the Notary, the present applicant had identified Mr. Kentan Bhai

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Gopalbhai Mehta. He further submitted that the Sub Registrar -

Bhavnagar, Ruva (3) - Akabarbhai Hajibhai Brahniya had also stated

before the Police that the present applicant had come before his

Office for the sale deed No. 407/2015 and 408/2015 dated

10.03.2015. The heirship affidavit and other documents were

notarized by Mr. Narendra G. Vyas and the plot was purchased by

Bhaveshbhai Harjibhai Beladiya and sold by Ketanbhai Gopalbhai

Mehta. Both the parties were identified by Dipakbhai Thakarshibhai

Sachpara and Hiteshbhai Premjibhai Koshia along with all those

parties the present applicant as lawyer had come with them.

10. Learned APP submits that as per the statement of Talati of

Ahmedabad Rajpur - Hirpur Indravadanbhai Solanki the Pedhinama

was not registered and the said Pedhinama was not issued by his

Office.

11. Learned APP submits that the person - Hamidbhai Yusubhai

Makarani, who is in the Office of the present applicant stated that he

under the instructions of the applicant had gone to the Registrar's

office to receive the disputed sale deed.

12. Referring the statement of Dipakbhai Thakarshibhai Sachpara,

learned APP submits that the said witness, on 10.3.2015 had gone

to the Office of the Registrar to get the information regarding the

Jantri price, of plat No. 61 to 64, which was in the name of his

R/CR.MA/20004/2017 JUDGMENT DATED: 30/01/2023

father, at that time he met Bhaveshbhai, who he had known since

last 8 years as a diamond broker, had informed him that as he had

come there for registration of sale deed of two plots and since the

witnesses have not arrived, Bhaveshbhai asked him to be witness in

the sale deed. For that, initially he had denied, but when the present

applicant, Advocate Ghanshyambhai Jagade told them that every

thing was legal and tittle was clear, there is nothing wrong in

signing the sale deed which he had prepared, therefore, the witness

has given his consent to be a witness in the sale deed.

13. Learned APP submitted that the present applicant as an

advocate was involved in the matter from the inception knowing

about all the fabricated documents, inspite of that he had assisted

the person who has impersonated himself as Ketan Mehta for

registration of the sale deed and creating the Pedinama.

14. Learned APP submitted that on the basis of the statement of

Bhavesh Harjibhai Beladiya, he along with Gopalsingh and

Ashiwnbhai and keshubha Rathod had gone to the present applicant

and upon seeing the file, Bhavesh asked Gopalsing and Ashwinbhai

to complete the file and as per his statement he knew advocate

Ghanshyambhai and therefore had gone to the office of advocate

Ghanshyambhai, where he had assured to make deficient

documents and the sale deed, and therefore sale deed was

prepared to purchase the plot. Accordingly, thereafter he had given

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Rs. 7 lacs to Ashwinbhai, on 9.3.2015 the present applicant had

informed him through phone that the sale deed is ready and asked

him to collect the same from his office, accordingly, as per his

statement, he had shown the will and the death certificate.

15. Learned APP submits that Gopalbhai Himatlal Mehta and his

wife Hemaben though alive, the death certificate was forged. On the

basis of the death certificate, heirship Pedhinama was prepared and

heirship affidavit was executed in the name of son of the

complainant Ketanbhai Gopalbhai Mehta, who had never travelled to

India, during the relevant time and in his name the affidavit was

executed and the present applicant had identified him before the

notary.

16. Learned APP submits that the documents which were shown

to him were false and fabricated. Inspite of that the sale deed was

executed and he identified the person as Ketanbhai Mehta.

17. As per the documents and report, the present applicant had

drafted two affidavits and two sale deeds, since notary would

require identification of the deponent and as a general practice, the

Notary public would get identification of the deponent through an

advocate or someone who is known to the Notary. Here in this case,

the present applicant had identified the executant of the affidavit

before the Notary who affixed the Photograph and the same person

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who had signed as Ketanbhai Mehta, had also produced the copy of

the identity card issued on 21.1.2007 by the Election Commission of

India, and the address shown is 10 - Rameshwar Park, Maninagar,

Ahmedabad. The will is unregistered dated 5.7.1997, which is

signed by Gopal Hiralal Mehta, wherein the witnesses are Pandya

Dineshbhai Bhagwanbhai, Harjivan Ramjibhai Rathod and Gathiya

Ramnik Trikamlal. Here in this will, it is not alleged that the witness

is the present applicant. The death certificate of Hemaben is

showing date of death as 2.3.1994 and the place of death is Mumbai

West and permanent resident of the deceased is shown as R- 600 -

003, Ahmedabad. The Pedhinama shows the date of death as

01.03.1998 of Gopalbhai Hiralal Mehta and the only survivor is his

son - Ketanbhai Gopalbhai Mehta. The present applicant has not

been shown as witness in the said Pedhinama.

18. The Public Notice was issued by the learned advocate Mr. L. N.

Devmurari of Amreli in the Sandesh Newspaper for sale of the land

by Ketanbhai Gopalbhai Mehta and by this public notice invited the

objections.

19. Regular Civil Suit Nos. 207 of 2017 and 208 of 2017 were

settled at National Lok Adalat as per the settlement between the

parties and accordingly, the decree was drawn. A copy of the

settlement shows that the property is re-transferred to the

Gopalbhai Hiralal Mehta and Ketanbhai Mehta. One Vipul Anantray

R/CR.MA/20004/2017 JUDGMENT DATED: 30/01/2023

Mehta appeared to be a power of attorney holder and the sale deed,

was decided to be cancelled. Accordingly, the names of the plaintiffs

were decided to be registered by cancelling the name of the

defendant. As per the settlement, the purchaser of the property

gave back the property to both the plaintiffs and noted that the

criminal action would be persued against person who had identified

himself as Ketanbhai Gopalsingh who had brought Kethanbhai to

them and Ashwinbhai Chauhan, whereas, the settlement does not

reflect the name of the present applicant to be prosecuted.

20. In the judgments produced by learned advocate Mr. Soni, in

case of Hira Lal Jain Vs. Delhi Administration (Supra), para -9

observes as under:

"9. Admittedly, the appellant has neither impersonated nor committed any forgery.

The real charge against him is that of conspiracy under Section 120-B I.P.C. But there is no prima facie evidence in respect of this charge. The documentary evidences only shows that the appellant made applications on behalf of the other accused, that he filed his Vakalatnama and that he identified them as the real claimants.

It is well known that the main income of many lawyers in the District Courts is derived from the work of identifying persons and sureties in the Courts."

20.1 In the case of State of Gujarat Vs. Kirtikumar Nandlal Koticha (Supra), para -8 of the judgment is as under:

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"..... All the five opposite parties are Advocates and, as such, they were not duty bound to be knowing the sureties and if the particular party had produced impostors in place of actual sureties mentioned, the Advocate cannot be held responsible. They had only identified the sureties on the basis of documents produced by them. If those documents wereforged or fabricated, the Advocate cannot be held responsible. The law on this point is well settled as discussed by both the Courts below. Further, nothing contrary has been shown by the learned APP. Thus, this Court does not find any error in the findings recorded by the courts below and, as such, this petition lacks merit and accordingly dismissed."

201.2 In the case of Rameshbhai Vallabhbhai Korat Vs. State of Gujarat (Supra), wherein it is observed that the allegation in the complaint is that the title clearance certificate was issued by the advocate, which turned out to be inaccurate it was held that at worst, the applicant can be said to have shown negligence and considering the circumstances of the case, the applicant cannot be held liable for forgery or cheating.

20.3 In the case of Pravinsinh K. Raol Vs. State of Gujarat (Supra), wherein it is observed that in preparation of forged release deed, the complainant was alleged to be deprived from his right in the ancestral property on account of preparation of forged release deed. The applicant being an advocate issued title clearance certificate in respect of the property, considering the scope and meaning of "forgery", held no role of the applicant in alleged deprivation of share of the complainant. The applicant has not certified that complainant has no share in the ancestral property. The applicant cannot be said to have committed forgery if the applicant is misled by any forged document said to produced before him.

20.4 In the case of Girishbhai Jashwantlal Bhatt Vs. State of Gujarat (Supra), wherein it is observed that

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the applicant was an advocate who issued the clearance certificate based on the documents produced by the bank along with the loan application papers, nothing was on record to indicate as to whether he had gained anything from the alleged crime, he does not appear to have any connection with other accused, who allegedly played role in obtaining the loan and he being a professional advocate in the panel of the bank has to issue certificate on perusal of the documents produced by the bank along with the loan papers. When his role as a conspirator could not be prima facie established from the record, he cannot be tried for the offences and hence, complaint qua him is required to be quashed."

21. In the present case, the facts suggest that Gopalbhai,

Ashwinbhai and Keshubhai Rathod had gone to the present

applicant, the file was shown to him and accordingly he assured that

the rest of the papers would be completed and the sale deed would

be drawn. The papers as alleged to have been executed are heirship

affidavit and sale deed, and, the affidavit had been executed before

the Notary. The present applicant had identified the person as Ketan

Mehta, who was holding Election identity card issued by the Election

Commission of India. The photograph was also affixed on the said

affidavit before the Notary, which is same as shown in the identity

card issued by the Election Commission of India. The will is

unregistered documents, where the lawyer would have no scope of

finding out, whether it was forged. Further, the death certificate of

Hemaben was also produced before the Notary. The Pedhinama

executed before the Revenue Talati, City Ward No. 5 was also

produced. Further, a Public Notice was issued on 24.2.2015 by the

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advocate Mr. L.N. Devmurari. The regular Civil Suits Nos. 207 and

208 of 2017 were settled. Prima-facie, there is no case of any

forgery or fabricated document by the present applicant. The person

- Ketanbhai Gopalbhai Mehta was identified by the present applicant

on the basis of identity card issued by the Election Commission of

India. The only act, which the present applicant has performed as a

part of professional duty is of identifying Ketan Mehta before the

Notary. This Court has not found any act of the present applicant as

alleged in the complaint, criminal in nature with the intention to

cheat, in conspiracy with other co-accused.

22. In case of State of Haryana V. Bhajan Lal & Ors., reported

in AIR 1992 SC 604, the Hon'ble 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 Hon'ble Apex Court in the said case made

the following observations:-

"8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given by

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way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guide in myriad kinds of cases wherein such power should be exercised:

(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;

(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

(c) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;

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(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;

(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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23. Thus, in view of observation and reasons given herein above

and taking into consideration the facts and circumstances of the

case, the impugned FIR and subsequent proceedings arising

therefrom are required to be quashed and set aside.

24. In the result, the petition is allowed. The FIR bearing CR No.I-

29/2017 registered with Gangajaliya Police Station, District -

Bhavnagar, and the proceedings initiated in pursuance thereof are

quashed and set aside qua the present petitioner. Rule is made

absolute to the aforesaid extent. Direct service is permitted.

(GITA GOPI,J) prk