Gujarat High Court

Madhubhai Popatbhai Vasani vs State Of Gujarat on 8 November, 2023

Bench: Sandeep N. Bhatt

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                     FIR/ORDER) NO. 21069 of 2017


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT                       Sd/-

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

2      To be referred to the Reporter or not ?                           Yes

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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                          MADHUBHAI POPATBHAI VASANI
                                    Versus
                          STATE OF GUJARAT & 1 other(s)
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Appearance:
MR SUNIL S JOSHI, ADVOCATE for the Applicant
MR CHINTAN DAVE, APP for Respondent No. 1 - State
MR SUNIL M AGRAWAL, ADVOCATE for Respondent No. 2 - Complainant
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                 Date : 08/11/2023

                                ORAL JUDGMENT

1. By way of present application, under Section 482

of the Code of Criminal Procedure, 1973, the applicant seek

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quashment of the proceeding being Criminal Case No.1493 of

2014 arising out of the FIR being C.R.- I No.231 of 2014

registered with the Odhav Police Station, District :

Ahmedabad for the offences punishable under Sections 406,

420, 467, 468, 120B and 114 of the Indian Penal Code.

2. The brief facts of the case are as under :

2.1 The original land owner is Nareshbhai Prahladbhai

Modi. He has total three pieces of land being R.S. No.152A,

152B and 153 total admeasuring 46136 sq.mtrs., (55178

sq.yrds.)

2.2 The applicant, being a Chairman of Jivandhara

Society, has purchased a partial land of 15000 sq.mtrs., of

Revenue Survey No.153 admeasuring 17503 sq.mtrs., from the

land owner - Nareshbhai Prahladbhai Modi, on 30.01.1991,

where the payment time limit was three months. Since the

payment could not be made by the applicant to the original

land owner within three months, the said so-called agreement

to sell has become cancelled/infructuous. Said Nareshbhai

Modi is accused No.1 qua the offence in question. Thereafter,

the applicant has resigned from the post of Chairman of

Jivandhara Society on 28.04.1992, which was accepted by the

Society and one Batukbhai Patel has become new Chairman

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of the Jivandhara Society.

2.3 Said Batukbhai Patel has purchased the lands of

Revenue Survey No.152A (3136 sq.mtrs.), Revenue Survey

No.152/B (25407 sq.mtrs.) and Revenue Survey No.153 (17503

sq.mtrs.), total admeasuring 46136 sq.mtrs. (55178 sq.yrds.)

from the original land owner i.e. Nareshbhai Modi and has

entered into an agreement to sell on 28.04.1992 being a

Promoter of Jivandhara Cooperative Society.

2.4 Thereafter, there are many transactions qua the

lands in question between said Batukbhai and other persons.

But, since the name of original land owner i.e. Nareshbhai

Prahladbhai Patel is there in the revenue record throughout,

he has made repeated transactions with many qua the very

lands in question. Hence, the complaint and the criminal

proceeding, which is pending before the learned competent

criminal Court.

3. Heard learned advocates. Rule. Learned APP and

learned advocate for the complainant waive service of notice

of rule for and on behalf of the respective respondents,

forthwith. With consent of all the learned advocates, the

matter is taken up for hearing and final disposal today.

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4. Learned advocate for the applicant has submitted

that this is a civil dispute and the applicant has no concern

at all with the transaction made by the persons qua the

lands in question. He has submitted that there is no direct

or indirect participation by the applicant in the offence in

question. He has submitted that the transactions in question

are not made by the applicant at all. He has submitted that

the applicant is not involved in any of the transaction in

question. He has submitted that the applicant has not taken

any monetary benefits from such transaction. He has

submitted that this Court has quashed the impugned

complaint and the criminal case qua the main accused vide

order dated 06.04.2017 recorded on Criminal Misc. Application

No.18228 of 2016 and cognate matters. He has submitted

that assuming for the sake of argument, if the applicant is

involved in the transaction then also it is a lessor role than

the main accused, for whom the complaint and criminal case

is quashed. He has submitted that no ingredient is satisfied

against the applicant as alleged in the complaint. He has

submitted that the applicant has already resigned as

Chairman of the Society in the year 1992 and thereafter,

another person is appointed as a Chairman and the

transactions were made by him. He has submitted that there

is no forgery by the applicant in the commission of offence.

He has submitted that the applicant is absolutely not

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involved in all the transactions made by the other persons

qua the lands in question. He has submitted that there is no

prima facie case made out against the applicant. He has

submitted that in view of the decision of the Hon'ble Apex

Court in the case of State of Haryana versus Bhajan Lal

reported in AIR 1992 SC 604, this is an abuse of process of

law against the applicant. He has submitted that this

application may be allowed.

5. Per contra, learned advocate for the complainant has vehemently opposed this application and has submitted

that there is a sprima facie made out against the applicant.

He has submitted that being a Chairman of the Jivandhara

Society, the applicant has purchased 15000 sq.yrds., land

amongst the land admeasuring 17503 sq.mtrs., of Revenue

Survey No.153 in the year 1991 by an agreement to sell and

has paid partial sale consideration. He has submitted that

there is a connivance of the applicant in the commission of

offence along with other accused. He has submitted that the

trial may be faced by the applicant. He has submitted that

this application may be dismissed.

6. Learned APP Mr.Dave for the State has submitted

that there is a prima facie case against the applicant and

therefore, this Court should not exercise the powers in favour

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of the applicant by quashing the proceedings impugned. He

has submitted that the land has chequered history and there

were many transaction for the very land in question. He has

submitted that there are other persons involved in the

offence in question. He has submitted that the offence is of

the year 2014, investigation is over, charge-sheet is filed and

trial is already commenced before the learned trial Court

being Criminal Case No.1493 of 2014. He has submitted that

at this stage, this application may be dismissed.

7. I have considered the rival submissions made by

the learned advocates for the respective parties. I have gone

through the material available on record. From record it

transpires as under :

7.1 The lands in question has chequered history.

7.2 The applicant, being a Chairman of Jivandhara

Society, has purchased the partial land of 15000 sq.mtrs., of

Revenue Survey No.153 admeasuring 17503 sq.mtrs., from the

land owner - Nareshbhai Prahladbhai Modi, on 30.01.1991,

where the payment time limit was three months. Since the

payment could not be made by the applicant to the original

land owner within three months, the said so-called agreement

to sell has become cancelled/infructuous. Said Nareshbhai

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Modi is accused No.1 in the offence in question. Thereafter,

the applicant has resigned from the post of Chairman of

Jivandhara Society on 28.04.1992, which was accepted by the

Society and one Batukbhai Patel has become Chairman of the

Jivandhara Society.

7.3 Said Batukbhai Patel has purchased the lands of

Revenue Survey No.152A (3136 sq.mtrs.), Revenue Survey

No.152/B (25407 sq.mtrs.) and Revenue Survey No.153 (17503

sq.mtrs.), total admeasuring 46136 sq.mtrs. (55178 sq.yrds.)

from the original land owner i.e. Nareshbhai Modi and has

entered into an agreement to sell on 28.04.1992 being a

Promoter of Jivandhara Cooperative Society.

7.4 Thereafter, there are many transactions qua the

lands in question between said Batukbhai and other persons

on various names. However, looking to the entire history of

the lands in question, it is required to be noted that the

present applicant was not involved in any of the transactions

directly and/or indirectly, except noted above.

7.5 The applicants and other accused were initially

arrested and granted regular bail by the learned competent

Court.

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7.6 Further, accused No.1 has preferred a quashing

application before this Court being Criminal Misc. Application

No.18228 of 2016, wherein this Court has allowed the

application and quashed the impugned complaint as well as

the consequential proceeding being Criminal Case No.1493 of

2014 pending before the learned trial Court along with other

cognate matters vide common judgment and order dated

06.04.2017.

7.7 There is no role of the present applicant in the

commission of offence.

7.8 Since the complaint and the proceeding is quashed

qua accused No.1 and others, the propriety demands that the

present application needs to be allowed.

8. Even otherwise, if the offence in question is

considered at its face value, there is no offence made out

against the present applicant. This is an abuse of process of

law against the applicant. The offence in question is made

out in the year 2014 for the act of the year 1991. The

complaint is registered at such belated stage without any

explanation and/or justification for delay. There are many

unanswered questions, but since the applicant is before this

Court, this Court has to consider the case of the present

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applicant only at this stage while exercising the powers

under Section 482 of the Code of Criminal Procedure, 1973.

This is a gross case of abuse of process of law by the

authorities against the applicant.

9. It would be fruitful to refer to the decision of the

Hon'ble Apex Court in the case of Chanchalpatidas V/s State

of West Bengal reported in 2023 SCC OnLine 650, which was delivered after considering inordinate delay in filing of

FIR, more particularly, paragraphs 15 to 20 as under:

"15. In State of A.P. Vs. Golconda Linga Swamy & Another, 2004 (6) SCC 522 this Court had observed that the Court would be justified to quash the proceedings if it finds that initiation or continuance of such proceedings would amount to abuse of the process of Court.

16. As regards inordinate delay in filing the complaint it has been recently observed by this Court in Hasmukhlal D. Vora & Anr. vs. State of Tamil Nadu, 2022 SCC Online SC 1732 that though inordinate delay in itself may not be a ground for quashing of a criminal complaint, however unexplained

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inordinate delay must be taken into consideration as a very crucial factor and ground for quashing a criminal complaint.

17. In the light of afore-stated legal position, if the facts of the case are appreciated, there remains no shadow of doubt that the complaint filed by the respondent-complainant after an inordinate unexplained delay of eight years was nothing but sheer misuse and abuse of the process of law to settle the personal scores with the appellants, and that continuation of such malicious prosecution would also be further abuse and misuse of process of law, more particularly when neither the allegations made in the complaint nor in the chargesheet, disclose any prima facie case against the appellants. The allegations made against the appellants are so absurd and improbable that no prudent person can ever reach to a conclusion that there is a sufficient ground for proceeding against the appellants-accused.

18. Before parting, a few observations made by this Court with regard to the

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misuse and abuse of the process of law by filing false and frivolous proceedings in the Courts need to be reproduced. In the Court. In Dalip Singh vs. State of Uttar Pradesh and Others, (2010) 2 SCC 114 it was observed that :

"1. For many centuries Indian society cherished two basic values of life i.e. "satya" (truth) and "ahimsa" (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-

delivery system which was in vogue in the pre- Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences.

                            However,                     post-Independence
                            period has seen drastic changes
                            in      our          value        system.         The
                            materialism has overshadowed the
                            old     ethos        and      the        quest      for
                            personal        gain         has        become       so






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                            intense       that     those      involved     in
                            litigation do not hesitate to take
                            shelter                of           falsehood,

misrepresentation and suppression of facts in the court proceedings."

19. In Subrata Roy Sahara vs. Union of India and Others, (2014) 8 SCC 470 it was observed as under :

"191. The Indian judicial system is grossly afflicted with frivolous litigation. Ways and means need to be evolved to deter litigants from their compulsive obsession towards senseless and ill-

considered claims."

20. We would like to add that just as bad coins drive out good coins from circulation, bad cases drive out good cases from being heard on time. Because of the proliferation of frivolous cases in the courts, the real and genuine cases have to take a backseat and are not being heard for years together. The party who initiates and continues a frivolous, irresponsible and

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senseless litigation or who abuses the process of the court must be saddled with exemplary cost, so that others may deter to follow such course. The matter should be viewed more seriously when people who claim themselves and project themselves to be the global spiritual leaders, engage themselves into such kind of frivolous litigations and use the court proceedings as a platform to settle their personal scores or to nurture their personal ego."

10. Further, it will also be fruitful to mention the

judgment of Hon'ble Supreme Court in the case of State of

Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, wherein the Hon'ble Supreme Court has observed thus -

"In the backdrop of the interpretation of the various relevant provisions of the Code under Ch.XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Art.226 or the inherent powers under sec.482 of the Code which we have extracted and reproduced above, we give the following categories of

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cases 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 guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) 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.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under sec.156(1) of the Code except under an order of a Magistrate within the purview of sec.155(2) of the Code.

(3) Where the uncontroverted allegations

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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.

(4) 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 sec.156(2) of the Code.

(5) 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.

(6) 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

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aggrieved party.

(7) 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."

11. It is also relevant to refer to the judgment

of the Hon'ble Apex Court in the case of Inder Mohan

Goswami and Another versus State of Uttaranchal reported in

(2007) 12 SCC 1, more particularly para : 23 & 24 thereof,

which read as under :

"23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Sec. 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Sec. 482 CrPC can be exercised:

[(i) to give effect to an order under the Code;]

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[(ii) to prevent abuse of the process of court, and]

[(iii) to otherwise secure the ends of justice.]

24. Inherent powers under Sec. 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself'. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute. Discussion of decided cases."

12. In view of above and under the circumstances, this

Court is inclined to exercise the inherent powers under

Section 482 of the Code in favour of the applicant. This

application therefore needs to be allowed.

13. For the reasons recorded above, the following order

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is passed.

13.1 The present application is allowed.

13.2 The impugned proceeding being Criminal Case

No.1493 of 2014 arising out of the FIR being C.R.- I No.231