Gujarat High Court
Ashishbhai Prafulbhai Patel vs State Of Gujarat on 21 April, 2025
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R/SCR.A/595/2015 ORDER DATED: 21/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 595 of 2015
With
R/SPECIAL CRIMINAL APPLICATION NO. 687 of 2015
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ASHISHBHAI PRAFULBHAI PATEL
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. BHADRISH S RAJU(6676) for the Applicant(s) No. 1
ADVOCATE NOTICE SERVED for the Respondent(s) No. 2
MR MANAN MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 21/04/2025
ORAL ORDER
1. By this applications under Section 482 of the Code of
Criminal Procedure (for short "the Code"), the applicants seek
quashing of the FIR registered as I-C.R.No.7 of 2015 with
Sarkhej Police Station, Ahmedabad for the offence punishable
under Sections 406, 420, 114 and 120-B of the Indian Penal
Code and further proceedings arising thereof.
3. Learned advocate Mr.Raju for the applicants seeking
quashment of FIR would submit that FIR if taken on its face
value, would not constitute offence under sections 406 and 420
of IPC. There is no criminal breach of trust or cheating as slated
in section 405 and 415 of IPC. It is submitted that petitioners
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are accused nos.2 and 3 and they are bona fide purchasers of
disputed property and they have purchased the property after
paying full consideration and by executing registered sale deed.
He would submit that complainant has filed Regular Civil Suit
No.1145 of 2015 (Old SCS No.596 of 2012) before the learned
competent Court at Ahmedabad seeking specific performance of
agreement to sale and cancellation of registered sale deed
executed in favour of the applicants. Learned Competent Court
after discussing fate of agreement to sale which is said to have
been executed in favour of the complainant and registered sale
deed executed in favour of the applicants believed that
complainant failed to put any case and in that circumstances,
dismissed the suit and thus, present FIR becomes
insignificance. He would submit that even otherwise FIR itself is
found to be vexatious and with a view to pressurize the
applicants, complainant has filed the FIR. Therefore, it is
submitted to quash the FIR by allowing the applications.
4. Per contra, learned advocate Ms.Parikh for the
complainant could not point out anything contrary to the
judgment passed in Regular civil Suit No.1415 of 2015. She
further submitted that agreement to sale was executed in favor
of the complainant, but to grab land of the complainant, the
applicants have cheated the complainant.
4.1. Making above submissions, it is submitted to dismiss the
application.
5. Learned APP in the facts and circumstance and having
appreciated the judgment passed by Competent Civil Court,
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submitted to pass necessary order.
6. Having heard learned advocate for both the sides, let refer
relevant portion of FIR :-
"The facts in this case are such that at the
aforestated date, place and time, above-mentioned accused
executed an agreement for sale regarding the land situated
within the revenue limits of Ambli village bearing Survey
No: 429, admeasuring 5969 sq.m for Rs 41 lakh and by
making sale-deed in the name of another, hatched a well
planned conspiracy in collusion with one another and
thus, committed offence by doing criminal breach of trust
and fraud.
Chetan Bhavsar and Kanjibhai Rabari fixed the deal
with me keeping alongwith the original owners of the land-
the farmers for the said land at Rs. 41,00,000/-. On
13/06/2007, I had paid Rs. 41,00,000/- in cash to the
original owner of the land, farmer Mr. Laxmanji Thakore
and Kantaben Thakore. The write-up regarding it's receipt
is there in the Agreement for Sale, and so, the Agreement
of Sale for this land was executed by Laxmanji Thakore
and Kantaben Thakore on the stamp paper of Rs. 50/-.
This stamp paper was purchased by the farmer Laxmanji
Thakore and this Agreement of Sale was executed before
N.G.Thakore Notary. At that time, witnesses Chetan @
Kachcho Bhavsar and B.V. Thakore had signed and the
Agreement was executed in their presence and on the same
day, date: 13/10/2017, Power of Attorney for this land
that cannot be cancelled, which is irrevocable Power of
Attorney were executed by Laxmanji Thakore and
Kantaben Thakore, wherein there is left-hand thumb
impression of Kantaben and it is signed by Laxmanji. And
as I have paid full consideration amount for this land, both
these farmers have executed indemnity bond cum
declaration in my favour and at that time, it was decided
and such an assurance was given that when it is time to
execute Sale-Deed of the said land, it should be executed
in my favour, or in favour of the person stated by me.
Thus, in the Sale-Deed for this land, these farmers have
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executed an Agreement for Sale as well as Irrevocable
Power of Attorney and Indemnity Bond cum Declaration in
my favour. And during the execution of all these three
agreements and when Rs 41,00,000/- were paid to the
farmers, entire process was carried out in presence of
myself, Chetan Bhavsar as well as Kanji Desai and B.V.
Thakore throughout.
Later, on Date: 28/07/2012, I read the Public Notice
in Gujarat Samachar newspaper, wherein Ashaben
Rajeshbhai Desai, residing at: 202, Darshak Navrangpura,
Ahmedabad asked for tittle for this land of Ambli bearing
Survey Number: 429, admeasuring 5969 sq.mts, in which
this land was mentioned to be of old tenure. Hence, I sent
my proofs against this title to the office of advocate for
Ashaben. Thereafter, on inquiring for the revenue records
of the land for which I made the Agreement of Sale, it was
found that she was the the original owner of the land.
Memorandum of Understanding for the land was executed
on 6/03/2006 with farmer Ramjibhai Desai for Rs 29 lakh
and on registered Sale-deed of this land showing it's value
to be Rs. 71,62,800/- and was executed in favour of
Ashishbhai Patel on 23/4/2007, and the Notorised
Agreement for this land, Irrevocable Power of Attorney and
Indemnity Bond cum Declaration were executed in my
favour on taking Rs. 41 lakh and this land was sold on
28/5/2012 at the price of Rs. 3 crore vide Regd. Sale-deed
No: 426/12. Thus, on checking, it was found that single
owner had made deal with more than one person.
Moreover, Ashish Prafulbhai Patel, residing at:
Radhe Bungalow, near Meghalaya Flat, Naranpura,
Ahmedabad does the business of purchasing and selling
land and construction work, and the farmers have taken
from me amount in cash for this land. Also, despite
knowing the facts that other deeds of this land have been
executed by giving assurance to pay the amount for all the
deeds, on colluding with the farmer, a Registered
Agreement of Sale of this land was made on 23/4/07. As
this land was of new tenure, he paid a premium of one
crore seventy-five lakhs in the Government to convert it to
old tenure and thereafter he got this land converted to old
tenure. On 28/5/12, he revoked the registered agreement
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of sale on the same day, by colluding with the original
owners of the land - the farmers, this land is sold to
Ashaben Desai without obtaining Title Certificate.
Despite knowing that the said land has been sold at
different places by the farmers, buyer of the said land
Ashaben Rajeshbhai Desai intentionally bought this land
from the farmers vide Registered Sale Deed No. 426/12
without obtaining Title Clearance of the land and by
showing an consideration amount of Rs. 3 crore on
28/5/12, he has colluded with Ashish Patel and original
owners of the land - farmer Laxmanji Thakore and
Kantaben Thakore, hatched a criminal conspiracy, issued
cheque of some amount in favour of the farmers and
cheque of the remaining amount in favour of Ashishbhai
Patel, made the registered sale deed. Instead of issuing
Public Notice for Tittle Clearance, which is to be published
in the name of farmer before the sale deed. It was instead,
intentionally published in the name of buyer of the land
Ashaben after two months of execution of the sale deed.
Hence, original owners of 5969 sq. mtrs. of Ambli
village revenue limits bearing survey no. 429 land, farmers:
1. Laxmanji Thakore and 2. Kantaben Thakore along-with
3. Ashish Patel have executed a Notarized Agreement for
Sale with us against consideration amount of Rupees 41
Lakh and an Irrevokable Power of Attorney of this land is
executed in my name and Power of Attorney not allowing
the revoking of Agreement for Sale and an Indemnity Bond
cum Declaration is executed. Despite knowing as such,
without obtaining Title Clearance Certificate of this land,
indicating the value of this land as Rs. 3 crore, by
colluding with 4. Ashaben Rajeshbhai Desai hatched a
criminal conspiracy and despite knowing everything, they
executed sale deed of the land and obtained the possession
of the land. All these accused abeted each other, they have
hatched a preplanned criminal conspiracy, by taking our
41 lakh rupees, and by not giving the possession of the
land, by executing a Registered Sale Deed of the land, they
have committed an offence of deception and breach of
trust."
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7. Above facts stated in the FIR would indicate that
prosecution has launched for the offence under sections 406 and
420 of IPC against the applicants. It is indisputable that even as
per FIR, Ashaben and Ashishbhai are purchasers of property
after paying sale consideration and after getting executed
registered sale deed from erstwhile owner of the land. It is also
indisputable that sale deed executed in favor of complainant on
13.10.2012 till filing of Regular Civil Suit No.1415 of 2015 (Old
SCS No.596 of 2012), the complainant did not seek relief for
specific performance. Regular Civil Suit No.1415 of 2015 was
filed by the complainant before the learned Competent Court for
cancellation of sale deed executed in favour of the applicants and
for relief of specific performance of permanent injunction. Suit
has been proceed. Various issues were framed by the learned
Trial Court and ultimately, learned Civil Court believed that
complainant who is plaintiff in the suit failed to prove his case,
which resulted into dismissal of the suit. Learned advocate
Ms.Parikh for the complainant could not point out whether
appeal is preferred against the judgment by Civil Court or not.
8. In view of above, let examine section 405 and 415 of IPC,
which reads as under :-
405. Criminal breach of trust.--
Whoever, being in any manner entrusted with property, or
with any dominion over property, dishonestly
misappropriates or converts to his own use that property,
or dishonestly uses or disposes of that property in violation
of any direction of law prescribing the mode in which such
trust is to be discharged, or of any legal contract, express
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or implied, which he has made touching the discharge of
such trust, or wilfully suffers any other person so to do,
commits "criminal breach of trust".
415. Cheating.--
Whoever, by deceiving any person, fraudulently or
dishonestly induces the person so deceived to deliver any
property to any person, or to consent that any person shall
retain any property, or intentionally induces the person so
deceived to do or omit to do anything which he would not
do or omit if he were not so deceived, and which act or
omission causes or is likely to cause damage or harm to
that person in body, mind, reputation or property, is said
to "cheat".
9. Punishment of aforesaid offence is slated in section 406
and 420 of IPC. In order to attract offence under section 405 of
IPC, it has to be proved that person entrusted with property, or
with any dominion over property, dishonestly misappropriates or
converts to his own use that property, or dishonestly uses or
disposes of that property in violation of any direction of law
prescribing the mode, that person is said to have committed
criminal breach of trust. Any person deceives any person,
fraudulently or dishonestly induces the person so deceived to
deliver any property to any person, or to consent that any person
shall retain any property, or intentionally induces the person so
deceived to do or omit to do anything which he would not do or
omit if he were not so deceived can be said to be offence of
cheating.
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10. In the present case, both the petitioners are owners of the
property by registered instrument recognized by Transfer of
Property Act. Ownership of the petitioners has been recognized
and approved by Competent Civil Court. Erstwhile owner has
never said that he has been deceived by the accused or he has
been entrusted property to the petitioners and the petitioners
have dishonestly misappropriated or converted said property to
their use. It is clear transaction of sale between erstwhile owner
and the petitioners recorded by learned Competent Court
whereby title is established in favour of the petitioners. The
complainant who claims that agreement to sale has been
executed is in his favor and also power of attorney cannot be
treated as owner of the property, the complainant has no right to
say that the petitioners have dishonestly misappropriated
disputed property. In this circumstances, ingredient of section
406 and 420 of IPC are completely blank in the FIR. The
petitioners cannot be send to trial.
11. This Court may gainfully refer to the following observations
of Hon'ble Apex Court in the case of State of Haryana v. Bhajan
Lal [1992 Suppl (1) SCC 335], and the law laid down therein has
been consistently followed. In para 102, the Hon'ble Apex Court
held as under :-
"102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter 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 Article 226 or the inherent powers under
Section 482 of the Code which we have extracted and
reproduced above, we give the following categories of cases
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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 Section 156(1) of the
Code except under an order of a Magistrate within the
purview of Section 155(2) of the Code.
(3) 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.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a noncognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(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."
12. In view of above, allowing of trial against the petitioners
would be absolutely absurd process.
13. For the foregoing reasons, the petitions are allowed. FIR
being I-C.R.No.7 of 2015 registered with Sarkhej Police Station,
Ahmedabad and all the consequential proceedings arising
therefrom are quashed and set aside qua the petitioners.
(J. C. DOSHI,J)
SATISH
