[Cites 13, Cited by 0]
Gujarat High Court
Manjulaben Dineshbhai Patel vs State Of Gujarat on 17 March, 2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 13071 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
NO
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MANJULABEN DINESHBHAI PATEL & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
DHRUV TOLIYA(9249) for the Applicant(s) No. 1,2,3
MR. BHADRISH S RAJU(6676) for the Applicant(s) No. 1,2,3
MR DEVDIP BRAHMBHATT(3490) for the Respondent(s) No. 2
MR RONAK RAVAL, ADDL.PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 17/03/2026
JUDGMENT
1 The present application is filed under Section 482 of
the Code of Criminal Procedure seeking quashment
of the FIR registered with Sola High Court Police
Station being I-C.R. No.11191045200044 of 2020 for
the offences punishable under Sections 406, 420,
467, 468, 471 and 120B of the Indian Penal Code,
wherein allegations have been made against three
accused persons who are the applicants before this
Court.
2 Brief fact of the allegations made in the FIR is as
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follow:
2.1 The facts of the case are that on the aforesaid
date, time and place, the above-named accused
persons, acting in collusion with each other and
sharing a common fraudulent intention, obtained a
total amount of Rs.1,00,00,000/- (Rupees One
Crore only) from the complainant through cheque
as well as cash and executed an agreement to sell
(Banakhat) in favour of the complainant. However,
without the knowledge of the complainant, the
very same property was subsequently mortgaged
with Bank of Baroda. Though the original share
certificates were in possession of the complainant,
the accused persons, with the assistance of
accused Nos.4 and 5, prepared and produced
bogus and fabricated share certificates before the
Bank. Further, without informing the complainant,
the accused persons again executed another
Banakhat in respect of the very same property in
favour of Rajendrabhai Keshavlal Patel after
receiving an amount of Rs.5,00,000/-. Thus, the
same property was sold/contracted to be sold at
three different places. In this manner, all the
accused persons, acting in concert and with
mutual assistance, hatched a conspiracy and
committed cheating and fraud with the
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complainant. Despite the complainant being in
possession of the original documents, the accused
persons created false and fabricated documents
and projected the same as genuine, and on the
basis thereof obtained money from the bank as
well as other persons by executing agreements to
sell, thereby committing breach of trust and
cheating against the complainant. Hence, the
offence is committed.
3 Heard the learned advocates Mr. B. S. Raju, Mr.Dhruv
Toliya for the applicants and learned advocate Mr.
Devdip Brahmbhatt for the respondent No.2 and
learned APP Mr.Ronak Raval for respondent-State.
4 Learned advocate Mr. B. S. Raju submits that the
allegations made in the FIR with regard to the
execution of the Banakhat, the subsequent
mortgaging of the property with Bank of Baroda,
availing of a loan and the eventual auction of the said
property by the Bank, do not constitute the offences
of cheating or criminal breach of trust. Learned
advocate Mr. Raju further submits that the
allegations with regard to the Banakhat executed
with one Rakshitbhai and Rajendrabhai, which was
subsequent to the Banakhat executed with the
complainant, are misconceived inasmuch as the said
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Banakhat was thereafter cancelled and
corresponding entries to that effect were mutated in
the revenue record on 26.04.2016 and 11.12.2013.
4.1 It is further submitted by learned advocate Mr.
Raju that by merely executing a Banakhat, no
right, title or interest accrues in favour of the
complainant so as to entitle him to seek execution
of a sale deed or refund of the money. Learned
advocate Mr. Raju submits that the dispute is
essentially of a civil nature, which has been given
the colour of a criminal offence and, in that
background, continuation of the impugned FIR
would amount to nothing but an abuse of the
process of law. It is further submitted that the
offences under Sections 406 and 420 of the Indian
Penal Code cannot coexist simultaneously, as held
by the Apex Court in the case of B. Suresh Yadav
v. Sharifa Bee, reported in (2007) 13 SCC 107
and therefore, on this ground also, the FIR
deserves to be quashed and the present
application is required to be allowed.
5 Per contra, learned APP Mr. Ronak Raval appearing
for the State has submitted that, as per the
allegations made in the FIR, the Banakhat was
executed with the complainant in the month of May
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2012, and at that point of time the original share
certificate and original document letter were handed
over to the complainant. It is submitted by learned
APP Mr. Raval that at the time of execution of the
agreement to sell, an amount of Rs. 50,00,000/- was
paid by cheque and thereafter the accused persons
named in the FIR applied for a duplicate share
certificate and, on obtaining the same, in connivance
with the Secretary, who was also arraigned as an
accused, the property came to be mortgaged with
Bank of Baroda on 27.11.2012. Learned APP Mr.
Raval further submitted that thereafter another
Banakhat came to be executed with one Rakshitbhai
on 20.11.2012 and also with one Rajendrabhai on
20.11.2013. It is further submitted by learned APP
Mr. Raval that, as per the recitals in the FIR, when
the complainant approached the accused persons, a
Memorandum of Understanding came to be executed
whereby the accused persons admitted the debt and
the act of cheating and assured the complainant with
regard to the repayment of the amount which was
taken from him. Learned APP Mr. Raval submitted
that subsequently the Bank, with whom the property
was mortgaged, auctioned the said property, and
therefore it cannot be said that no case is made out
against the present applicants, particularly in view of
their active involvement in the alleged offence. In
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that background, learned APP Mr. Raval has urged
that this Court may not interfere with the
investigation and the present application deserves to
be rejected.
6 Learned advocate Mr. Devdip Brahmbhatt, appearing
for the complainant, has supported the submissions
advanced by learned APP Mr. Ronak Raval and has
prayed that the present application be rejected.
7 Having considered the submissions made by the
learned advocates appearing for the respective
parties, it emerges that after executing the
agreement to sell with the complainant and handing
over the share certificate and other original
documents, the accused persons applied for a
duplicate share certificate to the Secretary of the
concerned society. On referring to the statement of
the Secretary, it appears that all three accused had
played a vital role in obtaining the duplicate share
certificate. It further emerges that subsequent to the
Banakhat executed with the complainant and after
receiving an amount of Rs.50,00,000/- by cheque,
the property came to be mortgaged with Bank of
Baroda. Thereafter, another agreement to sell came
to be executed with Rakshit on 20.11.2012, and yet
another with Rajendra on 20.11.2013. In such
circumstances, it cannot be said that the intention of
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the applicants was not to cheat the complainant. It
has been contended that both the Banakhats
executed subsequently were cancelled. However,
even if that be so, considering the conduct of the
applicants in executing different agreements to sell
with different persons, it cannot be said that the
accused persons have been falsely implicated.
7.1 It is true that as per the settled position of law,
the offences under Sections 406 and 420 of the
Indian Penal Code cannot simultaneously coexist.
However, when the investigation is still in
progress, it would be inappropriate for this Court
to direct the Investigating Officer to file the
charge-sheet for a particular offence, as it is the
prerogative of the Investigating Officer to file the
charge-sheet in accordance with the material
collected during the course of investigation. At this
stage, prima facie involvement of the present
applicants is disclosed.
7.2 Learned advocate Mr. Raju has relied upon the
decision rendered by the Apex Court in the case of
B. Suresh Yadav (supra). However, in the facts
and circumstances of the present case, the said
decision would not render any assistance to the
applicants.
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8 This Court has referred to the decision of the Apex
Court in State of Haryana v. Bhajan Lal, reported
in 1992 Supp (1) SCC 335, wherein the Apex Court
has laid down the guidelines governing the exercise
of inherent powers under Section 482 of the Code of
Criminal Procedure which are reproduced
hereinbelow:
"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 have given the
following categories of 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
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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 non-cognizable
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 aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is
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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."
9 This Court does not find any circumstances which
cover in the above decision, therefore, this
application requires to be dismissed.
10Resultantly, the present application stands
dismissed. Interim relief, if any, stands vacated.
(M. K. THAKKER,J)
M.M.MIRZA
