Kalpeshkumar Bechardas Patel and Another vs State of Gujarat and Another

Rajesh H. Shukla, J.—The present petition has been filed by the applicants u/s 482 of the Criminal Procedure Code for quashing and setting aside the complaint, being C.R. No. I-109/2007 registered at Kosamba police Station, Ta: Magrol, Dist. Surat, contending, inter alia, that there is a delay in filing the complaint and the applicant No. 1 is a bona fide purchaser for value and had purchased the land from Babubhai Patel, who was the power-of-attorney holder of the father of respondent No. 2 who has filed the complaint. It has also been contended that the ingredients of the complaint for the alleged offences qua the present applicants cannot be made out and since it is a dispute with regard to the sale of the property where applicant No. 1 is a bona fide purchaser for value without notice, and no such forgery having been committed, the complaint filed by the respondent No. 2-original complainant, may be quashed and set aside.

Learned advocate Mr. Rakesh Patel for the applicants has referred to the memo of the application and also submitted that the dispute is of civil nature and if at all the signature on the power-of-attorney of the father of the complainant, respondent No. 2, was forged by Babubhai, he can have recourse against him, but the present applicant No. 1 is a bona fide purchaser for value on the basis of such power-of-attorney executed in favour of Babubhai and the sale deed is also executed.

It was also submitted that the said power-of-attorney and the sale deed have been executed in the year 2002 and the complaint was lodged by respondent No. 2 in the year 2007. Learned advocate Mr. Patel has also submitted that the power-of-attorney executed in favour of Babubhai Patel by the father of respondent No. 2 (complainant) was not genuine or bona fide. The applicants would not have been aware and in any case if the signature of the father, who had executed the power of attorney, was forged by said Babubhai, then in that case, the complaint could have been filed by the father of complainant respondent No. 2. The present complaint is filed by respondent No. 2 and, therefore, with the passage of time and appreciation in the value of the property, the civil dispute is sought to be converted into a criminal proceeding by way of abuse of the process of the court.

In support of these submissions, learned advocate Mr. Patel has referred to and relied upon the judgment of the Hon''ble Apex Court in the case of Indian Oil Corporation Vs. NEPC India Ltd. and Others, , and emphasised the observations made in para 10 as under:

While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged.

Therefore, the learned advocate has submitted that the complaint may be quashed and set aside at least qua the present applicants.

Learned advocate Mr. Dipak Patel for the respondent No. 2 has submitted that the signature of the father of the complainant is not forged on the power-of-attorney and on the basis thereof the sale deed is executed in connivance with the present applicants and therefore the complaint has been lodged for the alleged offences u/s 420, 465, 467, etc. of IPC and at this stage the court may not consider about quashing the said complaint. Prima facie it is a dispute with regard to execution of the power-of-attorney by the father of the complainant which is not genuine and therefore the sale deed executed by the so-called power-of-attorney of the father of the complainant would also not be genuine and it requires investigation. He has also referred to the documents and submitted that if the power-of-attorney was registered, the sale deed could also have been registered. He also emphasized that both these documents are executed on the same day which creates doubt and therefore the complaint may not be quashed and set aside.

In view of the rival submissions, it is required to be appreciated whether the present petition filed u/s 482 of Cr.P.C. for quashing and setting aside the complaint against the present applicants should be quashed and set aside or not.

The applicant No. 1 is claiming as the bona fide purchaser for value without notice and it is his specific contention that the signature on the power-of-attorney of the father of the complainant, respondent No. 2 herein, is forged by Babubhai, he is not aware and the sale deed is also executed on the basis of the power-of-attorney of the father of the complainant in favour of the present applicant No. 1 in the year 2002. The complaint is filed as back as in the year 2007 for which the delay has not been explained. Moreover, even if the complaint is accepted or read as it is, the power-of-attorney of the father of the respondent No. 2 (complainant) is said to have been forged by Babubhai. Therefore, as rightly pointed out, the applicant No. 1 herein as a bona fide purchaser for a value may not have any idea about any such irregularity having been committed. Thereafter, applicant No. 1 executing a power-of-attorney in favour of applicant No. 2 has sold the said land contending that they were not aware about any such forged power-of-attorney of the father of the complainant executed by Babubhai. Further, it is also required to be appreciated that the power-of-attorney of the father is also executed before the Executive Magistrate and, therefore, relying on such power-of-attorney executed before the Executive Magistrate if someone like the applicant No. 1 enters into a transaction, he cannot be said to have connived in the absence of other evidence. Therefore, the long delay in filing coupled with the fact that there is no evidence to suggest that applicant No. 1 was conniving with the said Babubhai, the complaint deserves to be quashed qua the applicants.

The complaint is also filed by the respondent No. 2 and not by the father who is alive and whose signature is said to have been forged by the said Babubhai. Therefore, if the person is alive whose signature is forged on the power-of-attorney by said Babubhai, who, in turn, is said to have executed the sale deed, then the complaint ought to have been filed by the father of the complainant, but he has chosen not to file a complaint himself.

It is in these circumstances, though this Court is conscious about the limited scope of exercise of discretion u/s 482, but keeping in view the fact that there is substantial delay in filing the FIR which has not been explained, the father of the complainant whose signature is said to have been forged on the power-of-attorney has not fled the complaint himself, and in any case, the charges could be levelled against the said Babubhai who is said to have forged the signature, but the applicant No. 1 who is a bona fide purchaser of the property cannot be said to have been involved in the offence.

Therefore, though the observations have been made by the Hon''ble Apex Court laying down the guidelines about the scope of Section 482 of Cr.P.C. that such power has to be exercised with care and circumspection, in view of the overall circumstances considered hereinabove, this Court is of the opinion that the present application deserves to be allowed.

The present application accordingly stands allowed. Prayer in terms of para 9(A) is granted. The complaint, being C.R. No. I-109/2007 registered at the Kosamba Police Station, Ta: Magrol, Dist. Surat, is hereby quashed and set aside qua the present applicants only. However, it will be open for the original complainant as well as the investigating agency to pursue the matter qua the other accused persons including Babubhai Patel.