Dinesh Ghevarchand Jain vs State of Gujarat and 1

Honourable Mr. Justice Rajesh H. Shukla

Rule. Service of rule is waived by learned APP Mr. KP Raval for Respondent No. 1-State and learned advocate Mr. Gaurang Manav for Respondent No. 2.

The present petition has been filed under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure for the prayer that the FIR being C.R. No. I-1/2011 lodged with Sanand Police Station may be quashed and set aside on the grounds stated in the petition.

The facts of the case, briefly stated, are that the Petitioner is original accused No. 22. It is alleged in the FIR that in the year 1994, the farmers had executed an agreement to sell as well as power-of-attorney in favour of the wife of the complainant and as the wife of complainant was not having the status of an agriculturist, the sale deed could not be executed. However, though the entire agreed amount has been paid by the complainant, and as the complainant was bedridden for one year due to an accident in the year 1997, the farmers have sold the said lands in question to third parties, the details of which are stated in the petition. It is also stated that Petitioner has purchased a chunk of land by a registered sale deed dated 22.1.2010 on behalf of Tania Infrastructure Pvt. Ltd. in the capacity as director of the company through one Shri Rutul Vyomesh Mehta, lands bearing survey No. 31/1, 31/2/1 and land bearing survey No. 28/2/2. Therefore, it is alleged that the lands have been sold by registered sale deed by the farmers to third parties who in turn have sold to others including the present Petitioner which has led to filing of this complaint.

It is, therefore, alleged that the complaint is frivolous, bogus and therefore the same may be quashed and set aside on the ground stated in detail, inter alia, that the allegations made in the complaint clearly suggest that it only to cause harassment to the Petitioner the said complaint is filed. It is further contended that most of the dispute is of a civil nature regarding the transactions of sale of lands. It is also contended that the complainant had entered into an agreement/banakhat with the original owners/farmers in or about the year 1994-95 and thereafter the transactions have taken place and the present Petitioner has purchased the lands from the vendors by executing the sale deeds which is not in dispute. It is therefore contended that though such transactions in the sale of lands have taken place to the knowledge of the complainant, there is delay in filing the complaint for which there is no plausible explanation. It is also contended that Respondent No. 2-complainant is a practising advocate and has therefore deliberately tried to give the colour of a criminal complaint/offence with an ulterior motive to cause harassment. It is contended that Respondent No. 2 complainant had not filed any suit for specific performance or writing or contact with the original owners for all these years right from 1994-95 till the filing of the complaint which itself suggests that the allegations in the complaint are without any substance.

An affidavit-in-reply has been filed on behalf of Respondent No. 2-complainantreferring to the facts about the wife of the complainant having entered into the banakhat or power-of-attorney with the original owners of the lands situated at Village Kundal, Taluka Sanand, Dist. Ahmedabad and the fact that the Petitioner and Ors. have entered into the transaction of lands in spite of the knowledge that there was a banakhat/agreement to sell in favour of the wife of the complainant in connivance with the other owners and thereby have committed the offences. There is reference to a kabulatnama by the heirs of some of the original owners which is referred in the reply.

Learned Counsel Mr. PR Nanavaty for the Petitioner has adopted most of the submissions made by learned Sr. Counsel Mr. S.I. Nanavati in Criminal Misc. Application No. 5621 of 2011 and has only tried to supplement the same contending that there is no explanation for the delay caused in filing the complaint. Though Respondent No. 2 complaint claims to have entered into the banakhat/agreement to sell with the original owners of the lands, no suit for specific performance or complaint has been filed. Learned Counsel Mr. Nanavaty submitted that, in fact, as admittedly stated in the affidavit-in-reply, a title clearance notice was issued in the year 2009 in the newspaper ''Sandesh'' to which objection was raised by Respondent No. 2 and his wife, and in spite of that no action has been taken for either filing a civil suit or a complaint.

Learned Counsel Mr. Nanavaty submitted that as could be seen from the complaint, allegations are made by the complainant which require a closer scrutiny. He emphasised that it suggests that the complainant had paid Rs. 5 lakhs to some co-accused for getting the registered documents cancelled and for getting the kabualtnama of the heirs of the original owners or the subsequent purchasers. Learned Counsel Mr. Nanavaty therefore submitted that this itself suggests about his own conduct and there is no substance in the allegations when, admittedly, it is stated that the title clearance notice was given for which objection was raised and thereafter the Petitioner herein has entered into the transactions for purchase of the lands through one Rutul Vyomesh Mehta. He, therefore, submitted that the allegations in the complaint are made only to cause harassment when to the knowledge of Respondent No. 2 complainant the subsequent transactions in the lands have taken place and merely because he claims some right on the basis of the so-called banakhat/agreement to sell, which he has never enforced, no offence can be said to have been made out. He submitted that there is no explanation for the delay in filing the complaint even though objections have been raised pursuant to the title clearance notice in the year 2009. He emphasised that if there was an agreement to sell entered into by the complainant or his wife with the original owners in the year 1994-95, then, for all these years no suit has been filed and no specific performance has been claimed. Moreover, even after raising objections to the title clearance notice having, no further steps have been taken for which there is no explanation. He submitted that the explanation that the complainant was bedridden in the year 1997 is without any consequence. Learned Counsel Nanavaty strenuously submitted that though he claims about some transaction in favour of his wife, there is no whisper about the possession and normally in such cases possession would follow and conveniently Respondent No. 2 complainant has not stated about having possession of the lands in question. He, therefore, submitted that it raises serious questions and doubts about his own claim and such complaint has been filed belatedly only with an ulterior motive.

Learned advocate Mr. Gaurang Manav for Respondent No. 2 complainant has referred to the papers and the complaint to emphasise about the transactions which have taken place with regard to the lands in question. He submitted that the original owners had executed the banakhat in favour of the complainant after getting the consideration and after the death of some of the owners, their heirs have also executed the kabulatnama and therefore the subsequent transactions which have taken place by some of the heirs in favour of the present Petitioner and Tania Infrastructure Pvt. Ltd. Is void and in fact such transactions have taken place in connivance with the original owners to prejudice the rights of the complainant. He submitted that no right can be said to have been crated by any such documents in favour of the Petitioner and he therefore submitted that the present petition may not be entertained.

In support of his submissions, learned advocate Mr. Manav has referred to and relied upon the judgments in the case of Ravindra Kumar Madhanlal Goenka and Another Vs. Rugmini Ram Raghav Spinners P. Ltd., as well as the judgment in the case of Indian Oil Corporation v. NEPC India Ltd. and Ors. reported in (2006) 6 SCC 786.

Learned APP Mr. KP Raval submitted that the investigation is going on and he has produced the papers.

In view of the rival submissions, it is required to be considered whether the present application can be entertained or not.

It is well-accepted by catena of judicial pronouncements that inherent jurisdiction u/s 482 of Code of Criminal Procedure or extra-ordinary jurisdiction under Article 226 of the Constitution of India are required to be exercised with care and circumspection. From the facts which emerge from the records as well as rival submissions, a few things are required to be noted.

As it transpires from the record, Respondent No. 2-complainant claims to have entered into a banakhat/agreement to sell with the original owners in the year 1994-95 and he claims that he had not executed the sale deed as his wife was not an agriculturist, though had made an effort for getting the NA permission. Therefore, in substance, the submission is that though the sale deed has not been executed, the transaction was made with regard to the purchase of lands. However, admittedly, there are subsequent transactions of the lands by the owners or the heirs of the owners and sale deed have been executed. It is also evident from the record that though Respondent No. 2 complainant claims a right based on such agreement to sell/banakhat, he does not claim possession as, admittedly, the possession of the lands has never been parted in favour of the complainant by the original owners. Further, even though he claims to have knowledge about the subsequent transactions, admittedly, a suit for specific performance or any complaint is not filed till recently. Moreover, in many cases, admittedly, there are title clearance notices like in the present case before the purchase of lands by the Petitioner from the vendors and objections have been raised by Respondent No. 2 complainant in the year 2009 and still no further steps have been taken either for filing any suit or any complaint for the relief. In fact, the tenor of the complaint itself refers to the fact that he had paid some amount for the purpose of getting certain power-of-attorney or documents or the banakhat cancelled and also for correction of entries, which imply that even after his knowledge about such transactions regarding sale of lands, he has not taken any steps till this complaint is filed for which there is no explanation.

Therefore, as rightly emphasised about the aspect of delay, there is no plausible explanation given by Respondent No. 2 complainant. Further, the claim made by Respondent No. 2 complainant about getting N.A. Permission or making any effort for N.A. permission also requires a close scrutiny as, admittedly, he was not an agriculturist and therefore according to his own say the sale deed was not executed. Therefore, when, according to his own say, he was not an agriculturist, he could not have purchased the agricultural lands as it would be bit by the provisions of the Agricultural Tenancy Act. On the other hand, he claims that N.A. Permission has been obtained, but does not refer to any detail or produce the actual N.A. Permission. What has been referred to is some communication which is not an N.A. Permission. Further, admittedly, possession of the land has remained with the original owners and therefore the conduct is also relevant inasmuch as normally when such transaction is complete, the possession of the land in question would follow. Therefore, there is no handing over the possession in part performance of the agreement to sell/banakhat. There is no sale deed, there is no evidence with regard to complete payment and therefore the right claimed on the basis of such agreement to sell cannot be entertained when there are no sale deeds executed.

Therefore, in view of the discussion made hereinabove, prima facie, no offence can be said to have been made out, particularly when there is no explanation for the delay in filing the complaint as well as other aspects which have been referred to and discussed hereinabove. It is required to be mentioned that Respondent No. 2 complainant is a lawyer and therefore even after the title clearance notice and having raised the objection if no steps are taken, and also when no possession is claimed in respect of the lands in question, the matter cannot proceed further. Moreover, assuming that there was an agreement to sell or banakhat, again, it will be a matter of appreciation of evidence with regard to the time-limit for such payment, the conduct, the reasons for not taking the banakhat to a logical conclusion, and if he was not an agriculturist, whether such transactions could have been finalised. It is in these circumstances, when the present compliant is examined closely, it clearly suggests that the statements taken at the face value do not disclose any offence.

It is well accepted by catena of judicial pronouncements including the judgment in the case of State of Haryana and others Vs. Ch. Bhajan Lal and others, , that the exercise of discretion u/s 482 of Code of Criminal Procedure should be done with care and circumspection. By such judicial pronouncements, the Hon''ble Apex Court has discussed the scope and ambit of the power u/s 482 and has laid down the guidelines. It has been observed in such judgments that though the scope of exercise of power are very wide, it requires greater caution and at the same time it has been observed that no hard and fast rule can be laid down and such extra-ordinary jurisdiction is required to be exercised only in given circumstances as discussed in the guidelines like where the complaint accepted at the face value does not disclose any evidence.

The Hon''ble Apex Court in a judgment reported in the case of Preeti Gupta and Another Vs. State of Jharkhand and Another, referring to the earlier judgments including the judgment in the case of State of Haryana v. Bhajan Lal (supra) has also discussed as to when such inherent power could be and should be exercised. It is further observed that ?the inherent power should not be exercised to stifle a legitimate prosecution but the Court''s failing to use the power for advancement of justice can also lead to grave injustice.? Therefore, the discretion has been left to the court that can be exercised in a given case.

In the case of Inder Mohan Goswami v. State of Uttaranchal, reported in (2007) 12 SCC 1, the Hon''ble Apex Court has observed,

Inherent powers u/s 482 Code of Criminal Procedure though vide 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.

It is in these circumstances, the present petition deserves to be allowed as such complaint cannot be allowed for the arm twisting or pressurizing.

Therefore, having regard to the aforesaid facts and circumstances and the guidelines, the present petition deserves to be allowed and accordingly stands allowed. Prayer in terms of para 8(A) is granted. The FIR being C.R. No. I-1/2011 lodged with Sanand Police Station is hereby quashed and set aside. Rule is made absolute.