Gujarat High Court

Maheshbhai Vishandas Changrani vs State Of Gujarat on 2 November, 2023

Bench: Sandeep N. Bhatt

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     R/CR.MA/6975/2015                                        ORDER DATED: 02/11/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                   FIR/ORDER) NO. 6975 of 2015

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             MAHESHBHAI VISHANDAS CHANGRANI & 3 other(s)
                              Versus
                   STATE OF GUJARAT & 1 other(s)
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Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1,2,3,4
MR DIPEN DESAI(2481) for the Respondent(s) No. 2
MS MONALI BHATT, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                   Date : 02/11/2023

                                      ORAL ORDER

1. This application is filed under the provisions of

Section 482 of the Code of Criminal Procedure, 1973 (`the

Code' for short) for the following prayers:

"13(A) That this Hon'ble Court may be pleased to admit this Criminal Misc.Application;

(B) This Hon'ble Court may be pleased to allow this Criminal Misc.Application by quashing and setting aside the proceedings initiated and pending before learned JMFC, Kheda as Criminal Case No.98 of 2013 and the proceedings arising out of the criminal case qua petitioners, in the interest of justice;

(C) Pending admission, hearing and till final disposal of this

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petition, this Hon'ble Court may be pleased to stay the proceedings initiated and pending before learned JMFC, Kheda as Criminal Case No.98 of 2013 and the proceedings arising out of the criminal case qua petitioners in the interest of justice.

(D) xxxx"

2. The brief facts leading to filing of this application,

as stated in the application, are such that one private

complaint came to be filed as Enquiry Report as Criminal

Enquiry Case No.6 of 2012 and thereafter registered as

Criminal Case No.98 of 2013 before learned JMFC, Kheda

where it is alleged by respondent no.2 that the respondent is

a society registered under the Registrar of Co.op. Housing

Society and the complainant is a Secretary and the registered

office of the society is at Mahij, Taluka Kheda; that the land

is situated at village Mahij survey nos.534, 535, 536 and 538

(converted as block no.395) purchased by society in the year

1979 which was purchased by society from Barejadi Farming

and Industrial Company in which confirming party is Shree

Ram Corporation, Ship Associates; that the company who sold

the lands made plotting plot nos.1 to 274 and for the

purpose of way to the plot numbered as plot no.275; that out

of the above plots about 117 plots were purchased by

complainant and about 122 sale deed were executed; that the

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complainant accordingly became the owner and after the land

is purchased for the purpose of making construction of the

residential houses about 54 plinth level construction was

made and society has also made members of certain persons

of mill; that the mill was closed and the members have not

deposited the amount and construction could not be made,

however, the owners have remained in the society and the

name of society is reflected in the revenue record also; that

the respondent-accused made an attempt to grab the land

and they have registered one Sahyog Corporation Pvt.Ltd. On

13.4.2007 under the Registrar of Companies Act and the

original accused nos.3 and 4 who became director of Sahyog

Corporation made an application to convert the land in the

name of Sahyog Corporation from Barejadi Farming and

Industries; that the name was transferred in the revenue

record and thereafter original accused no.1 has given power

of attorney for the purpose of selling of the plot and with

the help of power of attorney on 7.3.2008 a sale deed was

executed in favour of the present petitioners for plot

no.395/275 area of the same is 31925 sq.mtrs.; that the sale

deed was executed and registered in the Registrar of

Companies and thereafter necessary entries are also made in

the government record; that though the accused is not

allowed to sell the, the sale deed was executed and

committed offence of fraud. It is stated that civil suit is also

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filed before learned Civil Judge, Kheda as Regular Civil suit

No.17 of 2011 by original accused nos.1 and 2 and

accordingly the complaint is filed; in which, the verification

was recorded, the police report was called for and thereafter

cognizance was taken and on 14.2.2013, the summons came

to be issued.

3. Heard learned advocates for the parties.

3.1 Learned advocate Mr.Dagli for the applicants has

submitted that the impugned criminal complaint is filed

under Sections 406, 420, 465, 467, 468, 471 and 120B of the

Indian Penal Code which is numbered as Criminal Case

no.98 of 2013, whereby the Court has issued the summons

after recording the verification and issuing the process to

investigate under Section 202 of the Code and thereafter, the

cognizance is taken by order dated 14.2.2013. He submits

that prima facie, though such process is followed by the

learned Magistrate while issuing summons, learned Magistrate

has not considered the averments made in the complaint by

which no offence as alleged is disclosed against the present

applicants.

3.2 Learned advocate Mr.Dagli has submitted that

considering the fact that on 13.4.2007 one Sahyog Corporation

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Pvt.Ltd. whose name is entered and originally it was

Barejadi Farming and Industries Pvt. Ltd. And a fresh

certificate of incorporation with regard to the change of name

in the office of Registrar of Companies was issued.

Accordingly in the revenue record, in 7/12 abstract, the name

of Sahyog Corporation through its director was entered.

Therefore, the present petitioners have purchased the land

total admeasuring 41,672 sq.meters which was in the name

of Sahyog Corporation and necessary title clearance certificate

was also asked which was issued by Sharma Associates,

Advocate on 16.2.2008. In the meantime, the public notice

was also given by 31.1.2008 in newspaper and thereafter the

sale deed is executed on 7.3.2008 in favour of the present

applicants and the consideration was paid through cheques.

He has submitted that in the revenue record, the necessary

entries were made and name of the applicants were entered

into 7/12 abstract also. The applicants are making regular

payment of revenue of the revenue charges to the revenue

authorities.

3.3 Learned advocate Mr.Dagli has further submitted

that Civil Suit No.17 of 2011 was filed before the Principal

Senior Civil Judge, Kheda by one Amrabhai Bharvad against

the complainant Ramnagar Cooperative Housing Society

seeking necessary injunction and the private complaint was

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filed by the respondent no.2 interalia contending that Sahyog

Corporation has no authority to sell the land and in fact the

complainant is the owner of the property in question.

3.4 Learned advocate Mr.Daglli has further submitted

that in this factual background, the ingredients of any of the

sections mentioned in the complaint are not satisfied. Not

only that, the prosecution was also initiated against the

applicants for purchase of the land way back in the year

2008 by making necessary verification in the revenue record

and this complaint is filed in the year 2013 and therefore

the complaint is nothing but abuse of process of law. He has

relied on the judgment in the case of Mohmed Ibrahim V/s

State of Bihar reported in 2010(1) GLH 184 and submitted that the present applicants cannot be held liable by any

stretch of imagination being bonafide purchaser of property

from the vendors after following necessary procedure and

therefore the offence pertaining to forgery or creating false

documents or cheating for criminal breach of trust as they

are attributed to the present purchasers cannot be attributed.

3.5 Learned advocate Mr.Dagli has relied on the

decision of the Hon'ble Apex Court in the case of

Kishansingh (dead) through Legal Heirs Gurpalsingh and Others reported in 2011(1) GLR 894 and has submitted that

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when there is a delay in lodging FIR the Court has to look

for plausible explanation for such delay and in absence of

such explanation, such delay may be fatal to the prosecution.

He has further submitted that in view of the totality of facts

and circumstances of the present case and considering the

latest judgment of the Hon'ble Apex Court reported in the

case of Sheila Sebastian V/s R.Jawaharaj & Anr. Reported in

AIR 2018 SC 2434, more particularly, paragraphs 25 and 26

of the judgment no case is made out against the present

applicants. He submitted that even assuming that the

applicants have committed some mistake in the process, but

that itself is not sufficient in the facts of the present case,

and therefore, the applicants cannot be prosecuted for the

same. He, therefore, prayed that in view of the judgment in

case of State of Haryana V/s Bhajanlal & Ors. Reported in

AIR 1992 SC 604. (supra), the present application maybe allowed.

4. Per contra, learned advocate Mr.Desai appearing for respondent no.2 has strongly opposed the prayers made

by the present applicants. By pointing out to the affidavit-in-

reply filed by the respondent no.2-complainant, he has

submitted that from the bare reading of the complaint, the

offence is made out against the present applicants. He has

also submitted that the sale deed which is alleged to have

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been executed with the applicants for the land in question is

dated 5.3.2008 and the same is executed by the very Shri

Amrabhai Valubhai Bharwad as power of attorney holder of

Sahyog Corporation Private Limited and in fact, from the

record available as such there is no private limited company

in the name of Sahyog Corporation and therefore the said

very Shri Amrabhai Valubhai Bharvad who had filed civil

suit claiming to be the care taker of the land has sold the

land to the applicants in the year 2008 but it does not state

that the facts in the suit which is filed in the year 2011.

4.1 Learned advocate Mr.Desai has further submitted

that the certificate which is purportedly issued by Registrar

of Companies dated 13.4.2007 petitioner as relied on by the

applicants certifying that Barejadi Farming Industries Private

Limited is changed to Sahyog Corporation Private Limited.

He has submitted that the Ministry of Corporate Affairs has

vide 26.12.2012 submitted that there is no company by name

of Sahyog Corporation Ltd., registered with the Registrar of

Companies. He has further submitted that certificate no.4-

30581 is with regard to the certificate of registration of M/s

Arbuda Steel Private Limited and the said name has been

changed to M/s Aster Silicate Private Limited and therefore

there is no such certificate in the name of Sahyog

Corporation Private Limited. He has further submitted that

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from the record, it transpires that there is clear delay, laches

in filing the quashing petition inasmuch as the order dated

14.2.2013 passed by the learned JMFC is challenged after a

period of more than two years and there is no explanation

worth the name as to why there is a delay of two years and

why the petitioner did not prefer the quashing petition.

4.2 Learned advocate Mr.Desai has further submitted

that the applicants are clearly party to the crime and have

in well thoughtout criminal conspiracy grabbed valuable land

belonging to the complainant herein in conspiracy with one

Amrabhai Valubhai Bharvad. He has further submitted that

the land in question is of the ownership of the complainant

herein and the said Shri Amrabhai Bharwad was claiming to

be the care taker of the land in question and in such

capacity as care taker, he has filed Civil Suit No.17 of 2011

before the learned Principal Senior Civil Judge, Kheda. He

has further submitted that considering all these aspects and

considering the conduct of the present applicants that if

actually, the applicants were cheated by the said Shri

Amrabhai Valubhai Bharvad, this was very clear case for the

applicants to file criminal complaint against Amrabhai

Valubhai Bharvad. Further, the applicants have not initiated

any action against the said Amrabhai Valubhai Bharvad nor

have sought for being impleaded as party in the suit nor

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have objected to any relief in the suit which shows that the

applicants and the said Amrabhai Valubhai Bharvad are

hand in gloves and are together in the entire conspiracy for

grabbing the valuable land of the complainant.

4.3 Learned advocate Mr.Desai, by referring to the

additional affidavit filed on behalf of respondent no.2 in the

present application, has submitted that from the papers of

investigation also, it reveals that the present respondent no.2

Shri Ramnagar Cooperative Housing Society Limited had

purchased 115 plots from the owner of the land in question

i.e. The Barejadi Farming and Industrial Company Private

Limited by way of registered sale deed dated 9.4.1979 and

total 115 different registered sale deeds were executed for

purchase of 115 different plots, and in pursuance of the sale

deeds, entries came to be posted in the revenue record at the

relevant point of time with respect to all the 115 plots and

therefore the society of the respondent no.2 i.e. Shri

Ramnagar Cooperative Housing Society Limited had purchased

the lands in question way back in 1979 from the erstwhile

owner-the Barejadi Farming and Industrial Company Limited

and its name is also mutated in the revenue record. He,

therefore submitted that the accused persons, by creating

forged and concocted documents and in connivance with other,

sold the lands and thereby have committed the offence in

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question.

5. Learned APP Ms.Bhatt has supported the

contentions raised by the respondent no.2 and has submitted

that as this Court has granted interim relief while issuing

notice vide order dated 20.8.2015, the trial could not be

proceeded further. As the dispute is between two private

parties, the Court may consider the merits of the matter and

since the prima facie case is made out against the present

applicants, the Court may not interfere with the same by

quashing the proceedings under Section 482 of the Code,

which should be exercised sparingly. She submitted that

therefore, considering the judgment in case of Neeharika Infrastructure Pvt.Ltd. V/s State of Maharashtra reported in 2021 SCC Online SC 315, appropriate order be passed in this matter.

6. I have considered the rival submissions and I have

also considered the sections which are invoked in the said

complaint, the documents, memo of the petition, affidavit,

documents produced along with the affidavit-in-reply, from

which, it clearly transpires that the respondent no.2-Shri

Rammnagar Cooperative Housing Society Limited, way back

in the year 1979, has purchased the land in question from

original owner Barejadi Farming and Industrial Company

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Private Limited. Thereafter, the entries are also mutated in

the record for the 115 plots of the lands in question and

thereafter in the year 2008, alleged sale transaction has

taken place in favour of the present applicants by the power

of attorney of one Shri Sahyog Corporation Private Limited.

It transpires that though the registered sale deed is executed

and payment is also made by way of registered deed, prima

facie the said Sahyog Corporation is not the owner of the lands in question considering the fact that the property is

already transferred way back in 1979 in favour of the

respondent no.2. Moreover, considering the communication

which is available on the record of the Ministry of Corporate

Affairs dated 26.12.2012, it clearly indicates that no such

company existed in the name of Sahyog Corporation and

certificate which is produced on the record in the said

number is registered in the name of M/s Aster Silicate

Private Limited and M/s Aster Silicate Limited respectively

and therefore, prima facie, certificate in the name of Sahyog

Corporation cannot be looked into as there is uncontrovertible

document available on the record which is produced by

respondent no.2 and therefore the contention raised by the

applicants that no ingredients are satisfied cannot be

believed. On the contrary, prima facie all the ingredients

alleged in the said complaint filed by the private complainant

against the present applicants are attracted and such

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complaint is required to be decided in a full flected trial

after giving opportunity to the parties.

7. As regards the judgments cited at the bar by

learned advocate for the applicants, more particularly, there

cannot be any dispute with regard to the ratio laid down

therein.

8. In the case of Sheila Sebastian (supra), it is held

in paragraphs 25 and 26 as under:

"25. Keeping in view the strict interpretation of penal statute i.e. referring to rule of interpretation wherein natural inferences are preferred, we observe that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made. As Explanation 2 to Section 464 further clarifies 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.

26. The definition of "false document" is a part of the definition of "forgery". Both must be read together. `Forgery' and `Fraud' are essentially matters of evidence which could

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be proved as a fact by direct evidence or by inferences drawn from proved facts. In the case in hand, there is no finding recorded by the trial Court that the respondents have made any false document or part of the document/record to execute mortgage deed under the guise of that `false document'. Hence, neither respondent no.1 nor respondent no.2 can be held as makers of the forged documents. It is the imposter who can be said to have made the false document by committing forgery. In such an event the trial court as well as appellate court misguided themselves by convicting the accused. Therefore, the High Court has rightly acquitted the accused based on the settled legal position and we find no reason to interfere with the same."

9. The ratio laid down in the aforesaid judgments

relied on by learned advocate for the applicants, this Court is

of the opinion that the judgment is not applicable in the

facts of the present case and not helpful to the case of the

present applicants.

10. Considering the fact that prima facie the offence is

made out against the present applicants on the bare reading

of the complaint and connecting the material available on the

record which the Court has to consider while considering the

application under Section 482 of the Code, this Court is of

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the opinion that this is not a fit case to exercise the

inherent powers under Section 482 of the Code.

11. It will also be fruitful to refer to the judgment of

the Hon'ble Apex Court in the case of Mehmood Ali and

Others V/s State of U.P, and others, reported in 2023 SCC Online SC 950, paragraph 13 of which reads as under:

"13. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court

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to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged."

12. In the case of Neeharika Infrastructure Pvt.Ltd. V/

s State of Maharashtra reported in 2021 SCC Online SC 315, wherein, it is held in paragraph 80 as under:

"80. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of

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stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:

i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;

ii) Courts would not thwart any investigation into the cognizable offences;

iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty).

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v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits

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of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;

xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make

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out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;

xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for

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grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.

xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied."

13. In view of the above discussion, the ingredients of

the sections invoked in the complaint are satisfied from the

bare reading of the complaint and considering the material

available on the record, it transpires that the present

applicants have played active role and there is prima facie

material available which satisfies the ingredients of Sections

406, 420, 465, 467, 468 and 120B of Indian Penal Code and

therefore I am of the opinion that the proceeding which is

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initiated by the complainant cannot be scuttled at this stage