Gujarat High Court
Kanubhai Ambalal Patel vs State Of Gujarat on 28 July, 2025
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R/CR.RA/198/2025 JUDGMENT DATED: 28/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 198 of 2025
With
CRIMINAL MISC.APPLICATION (FOR JOINING PARTY) NO. 1 of 2025
In R/CRIMINAL REVISION APPLICATION NO. 198 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE L. S. PIRZADA
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Approved for Reporting Yes No
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KANUBHAI AMBALAL PATEL
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR EKANT G AHUJA(5323) for the Applicant(s) No. 1
MR HRIDAY BUCH for the respondent No.2
MS.JYOTI BHATT for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE L. S. PIRZADA
Date : 28/07/2025
ORAL JUDGMENT
1. Rule. Learned A.P.P waives service of Rule on behalf of
the respondent - State.
2. The present revision application has been preferred by
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the present petitioner original accused under Section 438 read
with Section 442 of Bharatiya Nagarik Suraksha Sanhita, 2023
(in short "BNSS" 2023) directed against the order passed by
the learned Additional Chief Judicial Magistrate, Mangrol,
Surat in Criminal Case No.3638/2021 rejecting the discharge
application of the present petitioner - original accused dated
28.08.2024.
3. Short facts of the prosecution in nutshell is one FIR has
been registered before the Kosamba Police Station, Dist. Surat
for the offence punishable under Section 467, 468 and 471 of
the Indian Penal Code against the present applicant accused. It
is the case of the prosecution that original complainant is
permanently residing with his family at Delhi and they have
land at village Shiyalaj, Taluka - Mangrol, Dist, Surat bearing
survey No.217 and survey No. 255/2, 255/3 and they have
purchased the said land from the original owner Sara wife of
Kalu Asrfi resident of Siyalaja village by executing registered
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sale deed on 21.07.1982 and pursuant to this sale deed entry
was confirmed mutated in the revenue record on 03.03.1987
and as the original complainant is residing at Delhi in the year
2006 when they return to Surat subsequently they get the copy
of the revenue extract 7/12 from the Mamlatdar Office,
Mangrol at that time he came to know in the said above
mentioned land in the revenue record, the name Singarasinh
Jagarsinh, No.2 Mansikhsinh Jagarsinh, No.3 Balvidarsing
Jagarsinh has been shown as an occupier and the name is
mutated on the basis of registered sale deed and subsequently
complainant came to know that one Mr.Kanubhai Ambalal
Patel president of Surat has sold the said land by forging the
signature of the complainant and by creating the forge power
of attorney on 28.10.1996 and using the forge power of
attorney execute sale deed in favor of these three persons and
the said sale deed was executed before the Sub-Registrar
Office, Mangrol on 04.07.1997 making this type of allegation
the complainant came to be filed by the original complainant
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on 27.09.2010, pursuant to the registration of the FIR the
investigation has been carried out by the Investigation Officer
and Investigation Officer after completion of investigation filed
a charge sheet against the present petitioner - accused and
same was registered as Criminal Case No.1353/2017 and the
said Criminal Case No.2363/2021 and the said application and
the said case the present petitioner accused under Section 239
of the Criminal Procedure Code discharging the Exhibit-15 and
same was rejected by the learned trial Court on 28.08.2024.
Being aggrieved and dissatisfied, by the said order the present
revision application has been preferred.
4. Heard learned advocate Mr.Ekant Ahuja for the applicant.
It is submitted that the transaction enter into by the petitioner
in connection with disputed land is a genuine transaction in
the course of his business as a land broker and the sale deed
has been executed in the year 1996 and thereafter a period of
10 years as per the case of the complainant he came to inquire
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about the land, came to know about the execution of the sale
deed. Further it is submitted that as per the case of the
prosecution that the complainant came into contact with Mr.
Rajanibhai S. Patel, who has been shown in the Colum No.2 of
the charge sheet has already expired, who was doing business
of steel and who contacted the present petitioner and explained
to him that he had good piece of land will fetch the profit.
Further, it is submitted that even during the investigation the
statement of the advocate cum notary has been recorded as per
his statement of power of attorney was executed that further
statement on record of the Executive Magistrate in front of
whom the power of attorney was executed will demonstrate
the power of attorney executed. Further, it is submitted that
the original power of attorney has not been ceased by the
Investigation Officer and in absence of the original power of
attorney offence under Section 467 and 468 of the Indian
Penal Code cannot be established against the present
petitioner and it is submitted that the order passed by the
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learned trial Court is illegal and perverse more sufficient
material has been produced by the investigation in the charge
sheet papers to frame the charge allowing the revision
application.
5. Further in support of his argument learned advocate for
the applicant is relying upon the judgment of the Hon'ble
Apex Court in the case of C. Kamalakkannan
Vs State of Tamilnadu reported in (2025) 4 SCC page 487
and submitted that the when the original document has not
been produced then in absence of this conviction cannot be
sustained. Further relying upon the judgment of the Hon'ble
Apex Court in the case of Mohammad Ibrahim and others Vs.
State of Bihar (2009) 8 SCC page 751 1950 Criminal Law
Journal and submitted that the present revision application is
required to be allowed.
6. On the other hand, learned A.P.P. Ms. Jyoti Bhatt for the
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respondent has vehemently opposed the present revision
application and submitted that there is no illegality has been
committed by the learned trial Court, hence the present
revision application is required to be dismissed.
7. Learned advocate Mr.Hriday Buch for the respondent
No.2. It is submitted that the order passed by the learned trial
Court is just and proper, there is sufficient material has been
produced along with the charge sheet and rightly rejected the
discharge application, hence considering this, present revision
application is required to be dismissed.
8. Considering the arguments advance by the learned
advocate for the respective parties. At the short facts of the
case has already been narrated above.
9. While deciding the revision application is concerned there
is Hon'ble Apex Court in the case of State of Gujarat Vs
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Dilipsinh Kishorsinh Rao reported in 2023 (17) SCC 688 is
profitable in the said judgment in paragraph No.
10.It is settled principle of law that at the stage of considering an
application for discharge the court must proceed on an assumption
that the material which has been brought on record by the
prosecution is true and evaluate said material in order to
determine whether the facts emerging from the material taken on
its face value, disclose the existence of the ingredients necessary of
the offence alleged. This Court in State of Tamil Nadu Vs. N.
Suresh Rajan And Others (2014) 11 SCC 709 adverting to the
earlier propositions of law laid down on this subject has held:
"29. We have bestowed our consideration to the rival
submissions and the submissions made by Mr. Ranjit Kumar
commend us. True it is that at the time of consideration of the
applications for discharge, the court cannot act as a
mouthpiece of the prosecution or act as a post office and may
sift evidence in order to find out whether or not the
allegations made are groundless so as to pass an order of
discharge. It is trite that at the stage of consideration of an
application for discharge, the court has to proceed with an
assumption that the materials brought on record by the
prosecution are true and evaluate the said materials and
documents with a view to find out whether the facts emerging
therefrom taken at their face value disclose the existence of all
the ingredients constituting the alleged offence. At this stage,
probative value of the materials has to be gone into and the
court is not expected to go deep into the matter and hold that
the materials would not warrant a conviction. In our opinion,
what needs to be considered is whether there is a ground for
presuming that the offence has been committed and not
whether a ground for convicting the accused has been made
out. To put it differently, if the court thinks that the accused
might have committed the offence on the basis of the materials
on record on its probative value, it can frame the charge;
though for conviction, the court has to come to the conclusion
that the accused has committed the offence. The law does not
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permit a mini trial at this stage."
11. The defence of the accused is not to be looked into at the
stage when the accused seeks to be discharged. The expression "the
record of the case" used in Section 227 Cr.P.C. is to be understood
as the documents and articles, if any, produced by the prosecution.
The Code does not give any right to the accused to produce any
document at the stage of framing of the charge. The submission of
the accused is to be confined to the material produced by the
investigating agency.
12. The primary consideration at the stage of framing of charge is
the test of existence of a prima-facie case, and at this stage, the
probative value of materials on record need not be gone into. This
Court by referring to its earlier decisions in the State of
Maharashtra Vs. Som Nath Thapa (1996) 4 SCC 659 and the State
of MP Vs. Mohan Lal Soni (2000) 6 SCC 338 has held the nature of
evaluation to be made by the court at the stage of framing of the
charge is to test the existence of prima-facie case. It is also held at
the stage of framing of charge, the court has to form a presumptive
opinion to the existence of factual ingredients constituting the
offence alleged and it is not expected to go deep into probative
value of the material on record and to check whether the material
on record would certainly lead to conviction at the conclusion of
trial.
So, considering this pronouncement of Hon'ble Apex Court at
the time of deciding the discharge application and at the stage
of framing of charge the test of existence of prima facie case is
required to be considered and at this stage probative value of
the material on record did not require to be gone into and
catena of judgment of the Hon'ble Apex Court held that at the
time of framing the charge. Court has not to hold a mini trial
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but Court has to consider whether or not grounds are sufficient
to proceed against the accused on the basis of the charge sheet
material. It is not the look out of the Court whether the said
material produced along with the charge sheet is resulted into
acquittal of the case or it will bring home the conviction of
the accused. Considering the above aspect so far as the short
facts of the case has already been narrated above. Now
require to consider the statement of one Mr. Rameshchandra
Bhemjibhai Parmar he was at the relevant time working as
Executive Magistrate at Collector Office, Surat since in the year
1996-1997 and in his statement before the Police. It is a
signed statement, he stated that the power of attorney on with
the date which has been mentioned at 28.06.1996 that the
original power of attorney was bring by advocate Mr. K. S.
Dhimar and he was an advocate, he came with the original
power of attorney in his office on 07.11.1997 and he has put
his sign and put his seal on power of attorney as before me
and Mr. Dhimar has given the introduction of other person as
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Shivkumar Laxminarayan Gandhi. Further he stated that he
has put his signature and seal on 07.11.1997 as the sale deed
was executed on 04.07.1997. So before execution of the power
of attorney the registered sale deed was already executed on
the basis of the power of attorney from the copy of the
general power of attorney by the present petitioner. It is
evident that it has been Mr. R.B. Parmar put his signature on
07.11.1997. Further it is also evident from the material
produced along with the charge sheet that present petitioner
that is Kanubhai Ambalal Patel as a power of attorney holder
of Shivkumar Laxminarayan Gandhi had executed register sale
deed for the land of the original complainant in favor of
Singarasinh Jagarsinh, No.2 Mansikhsinh Jagarsinh, No.3
Balvidarsing Jagarsinh on 04.07.1997. So before power of
attorney has been executed the said sale deed executed by the
present applicant as a power of attorney holder of the original
land. So Considering this there is a strong suspension against
the present petitioner that he has forged the power of attorney
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and pursuant to this forge power of attorney, the sale deed has
been executed of the land belongs to the original complainant.
10. Further, learned advocate for the petitioner relying upon
the authorities of Hon'ble Apex Court and other regarding the
original power of attorney has not been ceased by the
Investigation Officer, so one original document has not been
ceased by the Investigation Officer. It has not been sent to the
DFSL for getting an opinion of the experts so in absence of
that the charge under Sections 467, 468 and 471 of the Indian
Penal Code cannot be proved the prosecution but as authorities
on relying upon by the learned advocate for the petitioner. It
has been considered by the Hon'ble Apex Court that after the
evidence has been adduced by the parties here in this case and
concerned as discussion above at this stage. Court has not to
hold a mini trial or marshalling the evidence but only to
consider whether there is sufficient evidence to frame the
charge against the present applicant accused or not. Further, I
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have perused the findings recorded by the discharge
application, the findings recorded by the learned trial Court is
just and proper, does not require any interference. I do not
find that the order passed by the learned trial Court is
excessive, illegal or perverse or against the settled principle of
law, I do not find any merits in present revision application.
11. The present revision application No.198/2025, is hereby,
rejected and the order passed by the Additional Chief Judicial
Magistrate, Mangrol, Surat in Criminal Case N.3638/2021
rejecting the discharge application vide Exhibit-15 dated
28.08.2024, is hereby, confirmed. Rule is discharged.
(L. S. PIRZADA, J)
HRT
