Mahavirsinh Narendrasinh Jadeja vs State Of Gujarat
2023 Latest Caselaw 4042 Guj

     R/CR.MA/3799/2012                                    ORDER DATED: 05/06/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 3799 of 2012

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             MAHAVIRSINH NARENDRASINH JADEJA & 1 other(s)
                              Versus
                    STATE OF GUJARAT & 1 other(s)
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Appearance:
MR Y J PATEL(3985) for the Applicant(s) No. 1,2
MR PARITOSH CALLA(2972) for the Respondent(s) No. 2
MR PRANAV TRIVEDI, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                             Date : 05/06/2023

                              ORAL ORDER

1. By this application under Section 482 of Cr.P.C., the applicants-original accused no.5 and 6, seek to invoke inherent powers of this Court, praying, inter alia, quashment of FIR being C.R. No.I-12 of 2012 registered with Morbi City Police Station, Dist:Morbi for the offences punishable under Sections 420, 406, 465, 467, 468, 471, 120B and 114 of the Indian Penal Code.

2. Facts and circumstances leading to file present application are that, the second respondent-original informant Durlabhji Rangpariya, resident of Morbi, lodged an FIR against eleven persons, alleging, inter alia that, in order to grab his agricultural land being Survey No.1033 situated at Vajepar, Morbi, the accused have had hatched the conspiracy and created a forged power of attorney and agreement to sell. The

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complainant had purchased the land in question by way of registered sale deed, allegedly executed by one Mr. Manish Patel, who had been given power by the original owner of the land. The power was given on 01.09.1998. The said sale deed executed on 02.09.1998 and since 1998, the complainant is in possession of the disputed land and enjoying all the right, title and interest thereof. It is alleged by the complainant that, despite having ownership of the land, some of the original owners of the land, in connivance with the present applicants created a bogus power of attorney, forging signature of one of the co-owners of the land, in favour of applicant no.1 herein namely Mahavirsinh Jadeja and Rajesh Gokul Ramani. On the basis of the power of attorney, false and bogus agreement to sell allegedly executed in favour of Jayrajsinh Jadeja - the applicant no.2 herein. The power allegedly executed on 13.10.2003, whereas the agreement to sell (without possession) was created on 06.11.2003. In such circumstances, the second respondent-original informant alleges that, the original owner of the land and the present applicants having no right, title or interest to deal with the disputed land as it was sold to him by way of registered sale deed in the year of 1998 and same was in the knowledge of the original owner and others. It is further alleged that, the accused made a false document as referred above with intend to grab his property and to claim a right over it before Civil Courts.

3. In the aforesaid facts, the applicants-original accused no.5 and 6 have preferred the present application, mainly on

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the ground that, the questioned FIR is being filed after a delay of 9 years, without there being any plausible explanation with oblique motive and a charge of forgery is not made out against the applicants as they are the purchasers of the land and had paid an amount of Rs.50,000/- to the original land owner and there is no allegation to the effect that, the applicants are involved in making a false document and therefore, prima- facie, the contents of the FIR as they stand make out no offence against the applicants herein.

4. This Court has heard Mr. Y.J.Patel, learned counsel, Mr. Paritosh Calla, learned counsel and Mr. Pranav Trivedi, learned Additional Public Prosecutor for the respective parties.

5. At the time of admission of the matter, notice was issued and later on, vide order dated 01.05.2012, the criminal proceedings registered in connection with the aforesaid FIR have been stayed.

6. Mr.Y.J. Patel, learned counsel for the applicants submitted that, the applicant no.1-Mahavirsinh Jadeja and one Rajesh Ramani, had been given a power by original land owner and the same was executed before the Executive Magistrate, Morbi and pursuant to the power of attorney dated 13.10.2003, the land bearing Survey No.1033 was sold to accused no.2- Jayrajsinh Jadeja by way of agreement to sell dated 06.11.2003. The original land owner failed to execute the sale deed in a stipulated time, as a result of which, the applicant no.2 being a purchaser of the land, filed a civil suit being Civil

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Suit No.243 of 2004 for specific performance of contract against some of the original land owners, wherein the second respondent-original informant was also joined as a defendant. The original land owners Ramiben Khimji, Narsinh Khimji and Tarsi Bhagwanji had also filed civil suit being RCS No.641 of 2004 against the co-owner of the disputed land and the second respondent, for declaration and injunction and cancellation of registered sale deed dated 02.09.1998.

7. In view of the aforesaid admitted facts, learned counsel Mr.Y.J. Patel submitted that, since 2003-04, the second respondent having knowledge about the disputed documents and was sat quite till the date of lodgment of FIR. The FIR is filed on 15.01.2012, whereas the period of offence as disclosed between 13.10.2003 to 20.05.2004. Thus, after a delay of 9 years, the criminal proceedings initiated by the second respondent for which there is no reasonable explanation offered by him which shows that, the FIR is lodged with oblique and ulterior motive. In support of this submission, heavy reliance has been placed on the case of Kishan Singh (dead through Lrs) vs. Gurpal Singh & Ors. (2010) 8 SCC 775 to contend that, the unexplained inordinate delay in filing the complaint is fatal to the prosecution and same would be abuse of process of law.

8. Mr.Y.J. Patel further submitted that, the suit filed by the applicant no.2 for specific performance of the contract, wherein also the second respondent was joined as a party defendant. That, mere execution of power of attorney in favour

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of applicant no.1 by the original owners of the land would not amount to commission of the offences punishable under Sections 465, 467 and 471 of the Indian Penal Code. In short, he submitted that, execution of such documents is not execution of false documents as defined under Section 464 of the Indian Penal Code.

9. In view of the aforesaid contentions, learned counsel for the applicants submitted that, the contents of FIR as it stands, does not make out the essential ingredients of the offences, nor, prima-facie case is made out against the applicants and therefore, the FIR and consequential proceedings which is tainted with malice and ulterior motive, deserves to be quashed and set aside.

10. On the other hand, countering to the contention raised by the applicants herein, Mr. Paritosh Calla, learned counsel appearing for and on behalf of the second respondent-original informant and Mr.Pranav Trivedi, learned Additional Public Prosecutor submitted that, the contents of the FIR constitute a cognizable offence and therefore, the police have registered the offence and still investigation is not completed due to stay against it. There are several aspects to be investigated by the I.O. as since 1998, the second respondent being an owner of the land, was in possession and despite of this, the original land owner, in connivance with the present applicants, have had hatched the conspiracy with common intention to grab the land and have executed a bogus power of attorney in favour of applicant no.1 and subsequently, the applicant no.1 sold the

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land by way of agreement to sell to his real brother i.e. applicant no.2. Thus, there is deep rooted conspiracy hatched by the accused which require thorough investigation and at this stage, Court may not exercise its inherent powers, when the entire facts are incomplete and evidence has not been collected. On factual aspects, it was submitted that, the alleged power of attorney in favour of the applicant no.1 was admittedly signed and executed by only 4 out of 6 original owners of the land and out of 4, one of the owners namely Valiben has denied to have signed the alleged power of attorney and after meeting with Valiben, the second respondent collected the material documents and thereafter, he lodged the FIR. Thus, therefore, he submitted that, there is no delay in lodging the FIR and same cannot be treated as ground for quashing.

11. Mr.Paritosh Calla, learned counsel appearing for and on behalf of the second respondent, submitted that, pending the petition, the Civil Court, Morbi vide its judgment and order dated 07.05.2018, dismissed the Civil Suit No.243 of 2004 and while dismissing the suit, the Civil Court observed that, the original land owner, having no right, title and interest to sell the land again as in the year of 1998, they had already sold it to the second respondent and therefore, the power of attorney as well as agreement to sell allegedly executed in favour of the applicants, is illegal and unexecutable. In these circumstances, he submitted that, in view of clear finding of the Civil Court with respect to power of attorney and agreement to sell, the prima-facie case involving the applicants herein in the alleged

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offence is made out.

12. In view of the aforesaid submissions, learned counsels appearing for the respondents submitted that, the jurisdiction under Section 482 of the Cr.P.C. has to be exercised sparingly with circumspection and Court should not embark upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR and therefore, considering the peculiar facts and circumstances of the case, no case is made out for exercising inherent powers to quash the FIR.

13. I have considered the rival submissions made by learned counsel for the parties and perused the undisputed documents. The issue as to whether the FIR as referred in para-1 of the judgment, is liable to be quashed in exercise of extraordinary and inherent jurisdiction?

14. Having regard to the facts and circumstances of the present case and submissions made by the learned counsel for the respective parties, the following undisputed facts emerges from the record:

(i) On 01.09.1998, all the legal heirs of Khimjibhai Khodabhai had executed a power of attorney with respect to alleged land, in favour of one Manish Patel and pursuant to the power, he executed a registered sale deed on 02.09.1998 in favour of second respondent - Durlabhji Rangpariya;

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(ii) On 13.10.2003, the legal heirs of Khimji Khoda namely Valiben, Narsinhbhai, Ramiben and Tarshi Bhagwanji signed and executed a power of attorney regarding the land bearing Survey Nos.1032 and 1033 in favour of applicant no.1-Mahavirsinh Jadeja and one Mr.Rajesh Ramani and pursuant to the said power, on 06.11.2003, they sold the land by executing agreement to sell in favour of applicant no.2-Jayrajsinh Jadeja. He filed a civil suit being Civil Suit No.243 of 2004 for specific performance of the alleged agreement to sell against the four legal heirs of Khimjibhai wherein the second respondent joined as a defendant and the suit was dismissed as the plaintiffs miserably failed to establish their right to execute the agreement to sell as on the date of agreement to sell, they were not owner of the said land, as a result, the Court has declared the power of attorney and agreement to sell as illegal and unexecutable.

        (iii)    The questioned FIR is registered on 15.01.2012 as
                 the      second   respondent      submitted      a      written

complaint addressed to P.I., Morbi City Police Station, arraigning 11 persons therein as accused and before, lodging of the FIR, the parties had availed the remedies before the Civil Court as referred above.

15. The applicants herein have been arraigned as accused

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no.5 and 6 in the alleged FIR. There is no direct allegation made against them that they have created a forged signature of Valiben. It is alleged against the applicant no.1 that, he being a power of attorney, allegedly executed by the some of the legal heirs of deceased Khimjibhai, sold the land to his brother-applicant no.2 by way agreement to sell. The main allegation appears to have alleged against the applicants that, they were members of the criminal conspiracy allegedly hatched by the original land owner and in order to grab the land, the accused have created false documents in the form power of attorney and agreement to sell. In these circumstances, considering the allegations leveled against the applicants herein, this Court is of considered opinion that, since 2003, the second respondent was aware about the alleged power of attorney and agreement to sell dated 12.10.2003 and 06.11.2003 respectively. On careful examination of the FIR, it appears that, there is an inordinate delay of 9 years in lodging the FIR. In the case of Kishan Singh (supra), the Apex Court, while dealing with the quashing of the FIR on the issue of delay held that, prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. In case there is some delay in filing the FIR, the complainant must given explanation for the same. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint is always fatal and in the case of delay, the Court has to look for a plausible explanation for such delay. In the absence of such an explanation, the delay may be fatal.

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The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a coloured version of events. In such cases, the Court should carefully examine the facts before it for the reason that, frustrated litigant who failed to succeed before the Civil Court may initiate criminal proceedings just to harass the other side with malafide intention or the ulterior motive of wreaking vengeance on the other side.

16. In the facts on hand, some of the land owners, due to reasons best known to them, after executing the registered sell deed dated 02.09.1998 in favour of second respondent- informant, executed a power of attorney regarding the said land in favour of applicant no.1 and in turn, applicant no.1 executed an agreement to sell in favour of his brother applicant no.2. It is not in dispute that, the allegation of forged power of attorney and signature of Valiben having not been referred to the Handwriting Expert for verification. The Civil Court while dismissing the suit of specific performance of the contract, recorded that, once the land sold to the second respondent, the defendants have no right or title over the land. In such circumstances, the second respondent-informant was having knowledge about the alleged power of attorney and agreement to selland was sat quite for a period of 9 years. The FIR was being registered on the basis of written complaint filed by the second respondent. Nothing being disclosed in the FIR that, after obtaining necessary documents from Valiben, he came to know that, the thumb impression of Valiben is forged one. It needs to be noted that, neither Valiben, nor, the legal

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heirs of Khimjibhai lodged the criminal complaint regarding the bogus and fabricated documents as referred in the present FIR. Thus, this Court find substance in the contention raised by learned counsel for the applicant that there is unexplained inordinate delay in lodging the FIR.

17. The next contention is that, the material on record prima-facie constitute no offence or make out a case against the accused. The applicants have been charged with the offence punishable under Sections 406, 420, 465, 467, 468, 471, 120B read with 114 of the Indian Penal Code. On reading of the contentions of the FIR, it appears that, no allegations leveled in the FIR to the effect that, from the inception, they had fraudulent and dishonest intention. The applicants herein did not have entered into contract with the second respondent, nor, given any promise. Thus, so far as allegations attributed to the applicants are concerned, prima-facie, the ingredients of Sections 406 and 420 of Indian Penal Code are not attracted. On careful reading of the complaint, it is alleged that, some of the original land owners in connivance with the present applicants created bogus power of attorney and executed an agreement to sell. Section 463 of the Indian Penal Code defines offence of forgery while section 464 which is pertaining to making a false document, says that, under what circumstances, a false document could be said to have been made for the purpose of committing offence of forgery under Section 463 of the Indian Penal Code. Section 465 provides punishment for the offence of forgery, whereas, section 468 provides punishment whoever commits a forgery for the

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purpose of cheating.

18. In the facts on hand, so far as applicants are concerned, it is alleged that, the original land owners executed a bogus power of attorney in favour of applicant no.1 who in turn, executed an agreement to sell in favour of applicant no.2. The power of attorney was executed before the Executive Magistrate, Morbi. There is no any direct allegation to the effect that, the applicants have forged the thumb impression of one of the co-owners i.e. Valiben. During the pendency of civil suits, no any attempt made by either of the parties to send the disputed documents for verification of Handwriting Expert. It is on record that, the original land owners had also executed another power of attorney in favour of the persons as referred in the FIR. Thus, prima-facie, it appears that, the applicants are not maker of documents and there is no allegation to this effect made against the applicants. Reference can be made to the judgment of the Apex Court delivered in case of Sheila Sebastian vs. R.Jawaharaj and Anr. (Criminal Appeal Nos.359-360 of 2010), wherein it was held that, for constituting an offence under Section 464, it is imperative that, a false document is made and the accused person is the maker of the same, otherwise, the accused person is not liable for the offence of forgery.

19. In view of the foregoing discussions and considering the allegations and role attributed to the present applicants in the alleged offence, this Court is of considered view that, prima- facie, the allegations made in the FIR against the applicants

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stand as it is, do not prima-facie constitute offence of forgery and forgery for the purpose of cheating. The case on hand is fully covered by categories (i) and (vii), as enumerated by the Apex Court in the case of State of Haryana vs. Bhajan Lal reported in (1992) Supp 1 SCC 335.

20. Thus, in order to prevent the misuse of process of law and Court, this is a fit case to exercise inherent powers to quash the FIR against the applicants.

21. Resultantly, FIR being C.R. No.I-12 of 2012 registered with Morbi City Police Station, Dist:Morbi for the offences punishable under Sections 420, 406, 465, 467, 468, 471, 120B and 114 of the Indian Penal Code as well as other consequential proceedings are hereby quashed and set aside qua the applicants herein. Accordingly, Rule is made absolute. Direct service is permitted.

22. It is made clear that the observations made hereinabove are confined to decide the facts of the present case. The trial Court shall proceed against the co-accused in accordance with law without being influenced by the observations made hereinabove and decide their case on its own merits.

(ILESH J. VORA,J) TAUSIF SAIYED