Gujarat High Court

Mahoharbhai @ Manuwali ... vs State Of Gujarat on 15 June, 2023

Bench: Sandeep N. Bhatt

     R/CR.MA/4948/2017                           JUDGMENT DATED: 15/06/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CRIMINAL MISC.APPLICATION NO. 4948 of 2017

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE SANDEEP N. BHATT

==========================================================

1      Whether Reporters of Local Papers may be allowed
       to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

==========================================================
           MAHOHARBHAI @ MANUWALI CHANCHALDAS NEBHANI
                             Versus
                   STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MR DIPEN DESAI(2481) for the Applicant(s) No. 1
DS AFF.NOT FILED (R) for the Respondent(s) No. 2
MR SOAHAM JOSHI, APP for the Respondent(s) No. 1
==========================================================
     CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                             Date : 15/06/2023

                             ORAL JUDGMENT

1. This application is filed under Section 482 of

the Code of Criminal Procedure, 1973 (`the Code' for

short) praying to quash and set aside the FIR bearing I-

C.R.No.30 of 2016 lodged before the Sardarnagar Police

Stationh and also to quash and set aside the chargesheet

R/CR.MA/4948/2017 JUDGMENT DATED: 15/06/2023

filed in respect of the said FIR being C.C.No.597 of

2016.

2. The brief facts leading to this application are

such that the FIR is lodged alleging that Plot No. 409

being City Survey No. 9883 admeasuring 161.61 sq.mtrs.

situated at Sardarnagar, Ahmedabad was allotted to

refugee, who had come from Pakistan under the

Displaced Persons (Compensation and Rehabilitation) Act,

1954. It is also the case of the complainant that, allottee

of the aforesaid land - Rajesh Shreechand Lalvani

executed power of attorney and sale deed on 06.08.2005

on a stamp papers of Rs.100/- and Rs.50/- respectively,

which were notarized, whereby, Parshottam Dhanomal

Harwani purchased the aforesaid plot by paying sale consideration of Rs.70,000/-. That, since the original

allottee had not paid the purchase price, the land in

question was resumed by the State Government, but

actually the possession was not handed over by the

original allottee. The land in question thereafter was

allotted by the State Government to one Gopichand

Harpaldas Jivnani. It is the case of the complainant

that, thereafter, the said Gopichand Harpaldas Jivnani

R/CR.MA/4948/2017 JUDGMENT DATED: 15/06/2023

executed a sale deed in favour of one Nanubhai

Raghubhai Bharwad on 16.07.2012, which came to be

registered in the office of the Sub Registrar and thereby

the land in question is sold by Gopichand Harpaldas

Jivnani to Nanubhai Raghubhai Bharwad. That, the

alleged land in question is a government land which

could not have been sold by Gopichand Harpaldas

Jivnani to Nanubhai Raghubhai Bharwad. It is this

complaint which is prayed to be quashed by way of this

application.

3. Heard learned advocates for the parties.

4. Learned counsel Mr. Desai, submitted that the

applicant herein has signed only as a witness in the said sale deed dated 16.07.2012. He submitted that the

applicant herein has only identified the executors of the

sale deed i.e. the purchasers and the sellers and it is

not even the case of the complainant that the signatures

are forged either by the purchasers or the sellers. He

further submitted that no offence could have been said

to be committed by the present applicant and on perusal

of the entire charge-sheet, no offence is made out against

the applicant herein. The applicant herein being a

R/CR.MA/4948/2017 JUDGMENT DATED: 15/06/2023

witness is not required to verify or to know whether the

person who has executed the sale deed is the real owner

of the land in question. Mr. Desai, learned counsel

submitted that the applicant herein was not named in

the F.I.R., however, the applicant herein has been

arraigned as accused no.4 in the charge-sheet being No.

66/2016 dated 02.05.2016 for the alleged charges under

Sections 406, 420, 467, 468, 471 and 120(B) of the

Indian Penal Code. He, therefore, prays to allow this

application and quash the impugned FIR and

chargesheet.

5. Learned APP Mr.Joshi for the respondent-state

has submitted that the applicant herein is only a

witness to the sale deed and there are no other allegations levelled against the applicant / or any role is

attributed against the applicant, during the course of

investigation/ in the charge-sheet.

6. At this stage, it is beneficial to refer to the

following position of law:

"9.1. In the case of Mohammed Ibrahim and others v/s. State of Bihar and another reported in 2009 (8) SCC 751,

R/CR.MA/4948/2017 JUDGMENT DATED: 15/06/2023

the relevant paras read thus:

"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 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 false document as defined

R/CR.MA/4948/2017 JUDGMENT DATED: 15/06/2023

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. Section 420 IPC

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 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

R/CR.MA/4948/2017 JUDGMENT DATED: 15/06/2023

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 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 to the sale deeds, deceived the complainant in any manner.

R/CR.MA/4948/2017 JUDGMENT DATED: 15/06/2023

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. A clarification

23. When we say that execution of a sale deed by a person, purporting to convey a property which is not his, as his property, is not making a false document and therefore not forgery, we should not be understood as holding that such an act can never be a criminal offence. If a person sells a property knowing that it does not belong to him, and thereby defrauds the person who purchased the property, the person defrauded, that is the purchaser, may complain that the vendor committed the fraudulent act of cheating. But a third party who is not the purchaser under the deed may not be able to make such complaint.

24. The term `fraud' is not defined in the Code. The dictionary definition of `fraud' is "deliberate deception, treachery or cheating intended to gain advantage". Section 17 of the Contract Act, 1872 defines `fraud' with reference to a party to a contract.

25. In Dr. Vimla vs. Delhi Administration - AIR 1963 SC 1572, this Court explained the meaning of the expression `defraud' thus

R/CR.MA/4948/2017 JUDGMENT DATED: 15/06/2023

"14. ....the expression "defraud" involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non- economic or nonpecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied."

The above definition was in essence reiterated in State of UP vs. Ranjit Singh - 1999 (2) SCC 617.

26. The Penal Code however defines `fraudulently', an adjective form of the word `fraud', in section 25, as follows :

"A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise".

27. The term "fraudulently" is mostly used with the term "dishonestly" which is defined in section 24 as follows : "Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing "dishonestly".

R/CR.MA/4948/2017 JUDGMENT DATED: 15/06/2023

28. To `defraud' or do something fraudulently is not by itself made an offence under the Penal Code, but various acts when done fraudulently (or fraudulently and dishonestly) are made offences. These include:

(i) Fraudulent removal or concealment of property (sec.206, 421, 424)

(ii) Fraudulent claim to property to prevent seizure (sec.

207).

(iii) Fraudulent suffering or obtaining a decree (sec. 208 and

210)

(iv) Fraudulent possession/delivery of counterfeit coin (sec.239, 240, 242 and 243).

(v) Fraudulent alteration/diminishing weight of coin (sec. 246 to 253)

(vi) Fraudulent acts relating to stamps (sec. 261-261)

(vii) Fraudulent use of false instruments/weight/measure (sec.264 to 266)

(viii) Cheating (sec. 415 to 420)

(ix) Fraudulent prevention of debt being available to creditors (sec. 422).

(x) Fraudulent execution of deed of transfer containing false statement of consideration (sec. 423).

(xi) Forgery making or executing a false document (sec. 463 to 471 and 474)

(xii) Fraudulent cancellation/destruction of valuable security etc. (sec. 477)

R/CR.MA/4948/2017 JUDGMENT DATED: 15/06/2023

(xiii) Fraudulently going through marriage ceremony (sec.496).

It follows therefore that by merely alleging or showing that a person acted fraudulently, it cannot be assumed that he committed an offence punishable under the Code or any other law, unless that fraudulent act is specified to be an offence under the Code or other law."

9.2. In the case of Randheer Singh V/s. State of Uttar Pradesh reported in 2021(12) Scale 55, wherein, the Hon'ble Apex Court has observed in para-37, which reads thus:

"37. The issues involved in this appeal are identical to the issues involved in Appeal No. 932 of 2021 disposed of earlier today. We may add that in this case, the appellants are only witnesses to the sale deed and there is not a word anywhere in the FIR about these witnesses except the vague averment that they acted in collusion."

7. In view of the peculiar facts, circumstances and

role attributed to the present applicant, considering the

documents available on record and considering the

submissions canvased by the learned counsels appearing

for the respective parties as well as considering the

position of law as referred above, more particularly, in

view of the fact that applicant herein has signed as a

R/CR.MA/4948/2017 JUDGMENT DATED: 15/06/2023

witness only in the sale deed which is duly produced at

page-108 dated 16.07.2012 which was entered into

between Gopichand Harpaldas and Nanubhai Raghubhai

Bharvad and that the applicant herein has only