HARESHBHAI JAYANTILAL THAKKAR & ORS. vs STATE OF GUJARAT & ANR.

By filling the present application under section 482

of the Code of Criminal Procedure, 1973, the applicants

prayed for quashment of the First Information Report

(FIR) bearing Crime Register No.I-187 of 2012 registered

on 10.10.2012 with Deesa City police station, District

Banaskantha. The said FIR was in respect of the offecnes

under sections 463, 464, 465, 467, 468, 470, 471, 420,

120B and 114 of Indian Penal Code, 1860.

The first informant-respondent No.2 herein

stated in his complaint inter alia that the accused No.1-

applicant No.1 herein had instituted Special Civil Suit

No. 18 of 2017 before the civil court at Deesa, against

the complainant as well as one Patel Kalabhai Dharmabhai

and others. It was alleged that in the said suit

proceedings, alongwith others, the plaintiff had produced

two agreements to sell in respect of agricultural land,

out of which agreement dated 14.07.2015 showed the first

informant to be the vendor. It was alleged that no such

agreement to sell dated 14.07.2005 was executed by the

first informant, nor by said Kalabhai Dharmbhai Patel and

that neither of them had signed any such document. It

was claimed that no amount of consideration was received.

In the First Information Report, in all 11 accused were

named. It was further inter alia alleged that accused

No.4 who was a Notary Public, notarised the document in

absence of the applicants and that the other applicant

accused who were advocate by profession, gave wrong

identification.

It appears from the contents of the allegations

in the FIR and the facts pleaded in the application that

one Kanbi Kalabhai Rajabhai and other persons were the

owners of certain agricultural land situated at Moti

Mahudi, Taluka Dantiwada, District Banaskantha. Their

lands were acquired by the government for the Sipu

Irrigation Project. The owners-the land losers were to

be compensated by the state government. It appears that

the original owners-the land losers executed six

different agreements to sell in favour of the the first

informant-the respondent No.2 and his partner Patel

Kalabhai Dharmabhai. The agreement to sell was executed

on 28.12.2004 as well as on 16.05.2005 for total

consideration of Rs. 8,22,000/- The respondent No.2 and

his partner failed to fulfill terms of the agreements and

could not arrange the funds towards consideration within

time. It is the case of the applicants that they

approached the applicant No.1 and thereupon agreed to

execute agreement to sell in favour of the applicant No.1

in respect of the very parcels of lands. Out of the

total land admeasuring 30 acres and 22 gunthas, the lands

admeasuring 20 acres and 12 gunthas were agreed to be

sold to applicant NO.1. The state government allotted 31

acres and 18 gunthas of land in favour of the original

owners-land losers. It is the case of the applicants

that the land-losers fulfilled their part of performance

by giving Power of Attorney to respondent No.2-his

partner Kalabhai Dharmabhai Patel empowering them to

sell, transfer or alienate the agricultural lands

allotted to the land losers. Respondent No.2 and his

partner did not fulfill their responsibility with regard

to the agreement to sell subsequently executed in favour

of applicant No.1.

3.1 A Special Civil Suit No. 18 of 2017 for

Specific Performance of the agreement in favour of the

present applicant No.1 was initiated by the applicant

herein against the first informant and his partner. An

application Exh. 5 was also filed seeking temporary

injunction. In the suit proceedings, original owners,

who were parties, did not choose to appear. Exh. 5

application came to be allowed on 4.7.2009. Appeal From

Order preferred against the order below Exh.5 came to be

withdrawn on 7.8.2009 and in the suit proceedings, the

issues came to be framed on 30.06.2010. It was stated in

course of the hearing that the said suit is pending at

the stage of leading evidence.

Heard learned advocate Mr. Hriday Buch for the

applicants and learned Additional Public Prosecutor Mr.

Raval for the respondent state, as also learned senior

counsel Mr. Percy Kavina with learned advocate Mr. Vijay

Nagesh for original complainant-the respondent No.2

herein.

4.1 Learned advocate for the applicants submitted that prior to lodging of the FIR in question, the

applicants had instituted the civil suit for specific

performance and it was after delay of 5 years that the

criminal complaint was filed alleging that the agreements

to sell which was subject matter of civil proceedings

were forged. He relied on the decision of the Apex Court in Kishan Singh (D)through L.R.s vs. Gurpal Singh [(2010)

8 SCC 775]. He further submitted that issues were framed

in the civil suit,but there was no issue regarding

forgery. It was submitted that essentially it was a

civil dispute between the parties and out of motives mala

fide and intended to wreck vengeance, criminal machinery

was invoked. Learned advocate for the applicants further relied on the decision in Bharat S. Cholera vs. State of

Gujarat being Criminal Misc. Application No. 14379 of 2011

decided on 18th April, 2013, as well as another decision in the case of Vinodbhandra Trambaklal Acharya vs. State

of Gujarat Criminal Misc. Application NO. 13067 of 2015

decided as per order dated 13.01.2016 to submit that

section 13 of the Notaries Act prohibits the courts from

taking cognizance of offence committed by a Notary in

exercise of or in purported exercise of the functions

under the Act.

4.2 On the other hand, learned Assistant Government

Pleader seriously opposed the prayer for quashment

submitting that mere aspect that civil suit was pending,

would not justify the court to readily exercise the

inherent powers which are to be exercised sparingly and

with circumspection. Joining with the submissions of

learned AGP and furthering the case, learned senior

counsel submitted that the allegations in the FIR were

clear so as to make out the offences alleged. He

submitted that there were believable evidence in support

of the allegations, that chargesheet was filed and

therefore, the court may not quash the F.I.R.. He

submitted that the powers under section 482 of the

Criminal Procedure Code are not to be exercised in

routine manner, but in rare cases where on the bare

reading of the allegations in the FIR, it could be

concluded that the offences were not made out. He

further submitted that delay will be irrelevant for

arriving at a conclusion whether FIR is required to be

quashed or not. Delay by itself is not fatal, according

to learned senior counsel, who submitted that in the

given set of circumstances, passage of time becomes usual

and natural, which may not be a factor to doubt the

veracity of the complainant. He relied on the decision in State of Maharashtra vs. Narain Singh Yadav [(2009) 16

SCC 392], to buttress his submission that in that case,

the decision of the High Court in quashing criminal

proceedings solely on the ground of lapse of time was not

approved by the Apex Court.

Now, the conspectus of the controversy reveal

the following facts and aspects relating to the civil

proceedings between the parties.

(i) The applicant No.1 instituted Special Civil

Suit for specific performance of the agreements to

sell in which the respondent No.2-the original

complainant and his partner Patel Kalabhai

Dharmabhai are defendant Nos. 2 and 1 respectively.

The said suit was filed on 31.02.2007 and is

pending. The very documents which are subject matter

of civil suit, are subject matter of alleged

offences under the FIR in question.

(ii) In the said suit, application Exh. 5 for

temporary injunction was filed, which was allowed

partly. Respondent No.2, purchaser of the land and

his partner were directed to maintain status quo

with regard to the ownership and possession of the

land.

(iii) Aggrieved by the order below Exh. 5, the

first informant and his partner Patel Kalabhai

Dharmabhai and others approached this court by

filling an Appeal from Order. It is the case of the

applicants that the Appeal from Order was withdrawn,

as the court was not inclined to entertain the same.

In any case, the Appeal from Order has been

withdrawn and the injunction as was granted by the

trial court is in operation in respect of the

subject matter land.

(iv) Defendant Nos. 24 and 25 came to be

subsequently added, who have filed their written

statement below Exh. 149 raising contentions that

they are bona fide purchaser. They also raised

contention about the limitation. Additional issues

are framed by the court on the basis of these

pleadings.

(v) In the said civil suit, the court framed issues

below Exh.97 on 30.06.2010. It is relevant to

notice an un-controverted aspect that in the issues

framed, no issue is raised by any of the defendants

including the first informant-respondent No.2 about

the forgery of agreements to sell, nor the court has

framed any such issue regarding forgery of the

documents as sought to be now alleged in the F.I.R.

filed. Even in additional issues, such issue on

forgery has not been framed.

(vi) In the written statement filed by the

respondent No.2-the first informant, he has not

chosen to allege fraud or forgery of the signatures

on the agreements to sell in question. What is

pleaded in the written statement at Exh. 81 is that

the agreements to sell are got up, however, specific

case of fraud or forgery has not been put forth or

pleaded.

5.1 The other attendant conspicuous aspect include

that the applicant No.1 had written cheque in connection

with the Sale agreement for an amount of Rs. 1,00,000/-

on 3.2.2006 drawn on Deesa Nagrik Sahkari Bank. The said

cheque which was in favour of the partner of respondent

No.2- Patel Kalabhai Dharmabhai, was presented for

withdrawl of the amount by said Patel Kalabhai

Dharmabhai himself and he has countersigned the cheque.

Furthermore, it could also be noticed that agreement to

sell in question was sent for obtaining opinion of a

hand-writing expert alongwith the documents containing

the signatures of the first informant and his partner

Patel Kalabhai Dharmabhai. The handwriting expert of the

Forensic Science Laboratory gave his opinion specifically

to state that on comparison of the natural signatures as

well a the disputed signatures, both match each other and

that there was no significant difference between two sets

of signatures.

5.2 Not only that the pleadings in defence raised

in respect of the case in the civil suit of the applicant

does not include the plea that the documents of agreement

to sell were forged or that forgery was committed, the

report of the hand-writing expert at least prima facie

reflected in its paragraph-14 that there was no

difference between the real and disputed signatures. The

fact of depositing of amount of Rs. 1,00,000/-, was

established by showing encashment of the cheque by the

said Patel Kalabhai Dharmabhai-partner of the first

informant. The issues were framed on 30.06.2010. Untill

that stage, there was no case or conception with the

respondent NO.2 original complainant that the documents

were forged. The instant FIR in question was filed on

10.10.2012 in which the case of forgery and the related

offecnes under IPC were put-forth and sought to be made

out.

5.3 All the persons who have either signed as

witnesses to the agreements or have prepared the

agreements as advocates or notarised the same, are sought

to be roped into in the allegations of commission of

offence. Out of the persons named in the FIR, the

applicant Nos. 2 and 3 are the drafters, the applicant

Nos. 4 and 6 are the signatories, whereas the applicant

Nos. 7 and 8 are the Notaries.

5.4 Another aspect that emerged in respect of the

FIR in question was that the same was filed on 10.10.2012

in respect of the offences alleged to have been committed

in July, 2005. The complaint was filed which was tainted

by gross-delay, when the criminal proceedings are

initiated 7 years after the execution of the agreements

to sell and five years after filling of the civil suit.

This superadded by the fact aforementioned that the civil

suit was filed in which, the complainant failed to get

any protective order. Delay in lodging the FIR strikes

at the root of the credibility of the allegations, for

the reason that a genuine complainant would not while

away the time beyond a reasonable limit.

5.5 In Kishan Singh (supra), the Supreme Court

stated on the aspect thus,

"In cases where there is a delay in lodging a FIR, the Court has to look for a plausible explanation for such delay. In absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a coloured version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the Civil Court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. (Vide : Chandrapal Singh & Ors. v. Maharaj Singh & Anr ., AIR 1982 SC 1238; State of Haryana & Ors. v. Ch. Bhajan Lal & Ors ., AIR 1992 SC 604; G. Sagar Suri & Anr. v. State of U.P.& Ors ., AIR 2000 SC 754; and Gorige Pentaiah v. State of A.P. &

It is well settled and reiterated in catena of decisions including in Inder Mohan Goswami and another vs.

State of Urraranchal [(2007) 12 SCC Page 1] that powers

under section 482, Cr.P.C ., which are inherent in nature,

are required to be exercised ex debito justitiae to do

the real and substantial justice. It was observed that

these are the powers to be exercised for prevention of

abuse of process of court and to otherwise secure the

ends of justice. A proceeding instituted by mala fide

would also justifiably attract exercise of the inherent

powers.

The principle is well settled that criminal

proceedings are not to be misused for settling the scores

or pressurising the parties to settle the civil disputes.

In Y.V. Jose v State of Gujarat [(2009) 3 SCC 78], was a

case where a dispute between the appellants and

respondent No.2 was regarding supply of a machine. The

Apex Court observed considering the facts of the case

that matter essentially involved dispute of civil nature

and may not be allowed to be resorted to as a short-cut.

Civil litigation converted into criminal allegations to

squeeze and to pressurize tantamount to abuse of process

of law and therefore when the proceedings of the

complainant reveal in its substance and essence dispute

of civil nature, criminal proceedings in that regard does

not survive to be continued. Continuing of the criminal

proceedings is a serious thing and cannot be allowed be

continued for the sake of continuance. This principle is

applied where controversy unfolded is basically in the

realm of civil rights and the criminal complaint is used

as a tool to pressurize.

In Rajeeb Ranjan vs. R. Vijaykumar [(2015) 1

SCC 513], the facts were that the tender of the

respondent complainant was rejected due to non-furnishing

of the necessary documents. The respondent made various

complaints before the authorities, but his case did not

find favour. Whereafter, he instituted civil suit

challenging the rejection of his tender, which was

ultimately dismissed for non-prosecution, and the Special

Leave to Petition was also dismissed by the Apex Court.

After exhaustion of the aforesaid remedies, the

respondent filed the complaint. The Magistrate took

cognizance and summoned the appellants. The petition

filed for quashing of the complaint came to be dismissed

by the High Court while accepting the case of the

appellant Rajeeb Ranjan. The Supreme Court allowed the

Special Leave to Petition and held that the allegations

of fabricating of records were mischievously made, which

was an after thought and the same was intended just to

give colour of criminality in a civil case. Since the

complaint was filed after losing the battle in the civil

proceedings, it was observed that filing of complaint was

not bona fide and amounted to misuse and abuse of process

of law. It was held that the High Court should have

quashed such criminal proceedings in exercise of inherent

powers under sections 482 of the Code of Criminal

Procedure, 1973.

8.1 Observations in paragraph No. 19 in Rajeeb

Ranjan (Supra), reads thus,

"If one looks into the allegations made in the complaint as stand alone allegations, probably what the High Court has said may seem to be justified. However, a little deeper scrutiny into the circumstances under which the complaint came to be filed would demonstrate that allegation of fabricating the false record is clearly an afterthought and it becomes more than apparent that the respondent has chosen to level such a make belief allegation with sole motive to give a shape of criminality to the entire dispute, which was otherwise civil in nature. As noted above, the respondent had in fact initiated civil action in the form of suit for injunction against the award of the contract in which he failed. Order of civil court was challenged by filing writ petition in the High Court. Plea of the respondent was that the action of the Department in rejecting his tender and awarding the contract to accused No.1 was illegal and motivated. Writ petition was also dismissed with cost. These orders attained finality. It is only thereafter criminal complaint is filed with the allegation that accused No.1 is favoured by creating a false certificate dated 28.12.2004. We would dilate this discussion with some elaboration, hereinafter."

The Supreme Court in Paramjeet Batra v State of

Uttrakhand [(2013) 11 SCC 673] observed,

"While exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court." (Para 12)

9.1 It was then stated,

"A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court." (Para 12)

In the instant case, from the afore-discussed

cumulative facts, circumstances and the aspects,

necessary inference is that the criminal complaint is

field in respect of the civil matter already pending and

subject matter of civil suit, to pressurise the

applicants. The criminal action was adverted to after

having lost at material stages in the suit with a view to

pressurise. The dispute which was pre-dominantly and

practically was of civil nature, is sought to be

translated into criminal offence and the complaint is

registered with the police by alleging that the

documents of agreements to sell were forged, after gap of

six-seven years and that too without showing any real

basis for establishing commission of affences. Thus, it

is clear from the kind and nature of the allegation in

the First Information Report as well as from attendant

facts and circumstances, that the dispute has clinching

civil attributes. Whatever aspect of the matter raised

for alleging offences under Indian Penal Code, are

intended to give colour of criminality to essentially a

civil dispute. Such abusive initiation of criminal

proceedings have to be quashed irrespective of the stage

they may have reached. Filing of charge-sheet is no bar

more particularly when overwhelming aspects of the case

require exercise of powers under section 482 of the Cr.

P.C..

In view of the above, criminal proceedings

against the applicants pursuant to First Information

Report in question cannot be continued. The First

Information Report bearing Crime Register No.I-187 of

2012 registered on 10.10.2012 before the Deesa City

police station, District Banaskantha and all

consequential proceedings, qua the present applicants,

are quashed.