Khandubhai Poonabhai Tandel vs State of Gujarat and Others

V.M. Pancholi, J.�This application under Sec. 482 of the Code of Criminal Procedure, 1973 is filed by the original accused No. 1 of F.I.R. bearing C.R. No. I-41 of 2010 registered with Valsad City Police Station for quashing and setting aside the same qua him. The brief facts of the present case are as under :

1.1. That the present respondent No. 2 is the original First Informant, who has lodged the F.I.R. before the Valsad City Police Station under Secs. 465, 467, 468, 471 and 114 of the Indian Penal Code. It is the case of the complainant that a Satakhat (Agreement to Sell) was executed on 28-12-1997 in respect of the land bearing Survey No. 484/1 of village Bagdawada, District : Valsad. It is the case of the complainant that at the time of execution of the Satakhat, an amount of Rs. 1 lakh was paid and the remaining amount of Rs. 6,50,000/- was required to be paid within a period of one year from the date of execution of the Satakhat i.e. up to 28-12-1998. It is further stated in the F.I.R. that one of the conditions of the Satakhat was that if the applicant was not in a position to pay the remaining amount within a period of one year, then the amount was required to be paid with interest after a period of one year. It is the specific case of the complainant himself that during the period between 1999 to 2003, the applicant-accused had paid Rs. 8,89,000/- by way of different cheques and cash. It is alleged by the complainant that before 7 months from the date of filing of the F.I.R., when he visited the office of the Gram Panchayat for making the payment of revenue, he came to know that out of total land admeasuring 1936 sq.yards, 540 sq.yards of land is transferred in the name of one Nandiben, daughter of Bhagvanbhai Dahyabhai Tandel and when the complainant made further inquiry, he came to know that on 3-3-2000, a forged Power of Attorney was executed in favour of the applicant-accused. It is the case of the complainant that the signature of the complainant and his relatives are forged in the said Power of Attorney and by using the said Power of Attorney as true document, the land admeasuring 540 sq.yards is sold to accused No. 2 - Nandiben, daughter of Bhagvanbhai Dahyabhai Tandel."

Learned Advocate Mr. P.P. Majmudar appearing on behalf of the applicant mainly submitted that the impugned F.I.R. is nothing but gross abuse of process of the Court and it is filed with a mala fide intention to pressurize the applicant. He has further submitted that certain admitted facts are on record and complainant himself has stated so in the F.I.R. filed by him. He submitted that the Satakhat dated 28-12-1997 is not in dispute. It is further not in dispute that total amount of consideration for the land admeasuring 1936 sq.yards was Rs. 7,50,000/-. If the accused fails to pay the amount within a period of one year, the amount is to be paid with interest. It is further not in dispute that after receipt of the amount of consideration, the Power of Attorney is to be executed by the complainant in favour of the applicant. It is further not in dispute that the complainant has initially received an amount of Rs. 1 lakh at the time of execution of the Satakhat, and thereafter, during the period between 1999 to 2003, he has received a sum of Rs. 8,89,000/-. Thus, it is clear from the record that the complainant has received a total sum of Rs. 9,89,000/-. Thus, it is submitted by the learned Advocate that the applicant had paid the amount with interest to the complainant. The learned Advocate for the applicant further submitted that there is a gross delay in filing the F.I.R. and said delay is not explained by the complainant. It is submitted by him that the so-called forged Power of Attorney is executed on 3-3-2000 for which F.I.R. is filed in the year 2010. He further submitted that complainant has suppressed the material fact. The applicant has produced the sale-deed dated 27-5-2005 executed by him as a Power of Attorney of the complainant and others in favour of one Naynaben, daughter of Madhavbhai Dalubhai Tandel. Learned Advocate further referred to the revenue entries made in Village Form No. 6. The entry is made in the revenue record on 27-7-2006 with regard to the sale-deed executed by the applicant as Power of Attorney-holder of the complainant and others on 27-5-2005. Thus, the entry is made in the revenue record in the year 2006 and the sale-deed was executed in favour of Naynaben on 27-5-2005. In spite of that the complainant had suppressed the aforesaid material fact in the F.I.R., and therefore, on that count also it can be said that the impugned F.I.R. is nothing but an abuse of process of the Court. Learned Advocate for the applicant further pointed out that one of the conditions in the Satakhat is that after me receipt of payment of consideration the complainant will execute a Power of Attorney in favour of the applicant, and therefore, when the applicant has paid the amount of consideration as stated in the Satakhat, the complainant himself along with his family members executed the Power of Attorney in his favour, and therefore, false allegations are levelled in the F.I.R. with regard to the forgery of said Power of Attorney. Learned Advocate has further submitted that normally a prudent person, after coming to know that the a sale-deed is executed on the basis of the forged Power of Attorney, would immediately initiate the civil proceedings for cancellation of sale-deed before the competent Civil Court. However, as per the instruction received by him, no such proceedings are initiated by the complainant for cancellation of the sale-deed. Thus, from the overall facts and circumstances of the case, learned Advocate for the applicant submitted that the impugned F.I.R. be quashed and set aside qua the applicant. The learned Advocate relied upon the decision of the Hon''ble Supreme Court in the case of Md. Ibrahim and Others Vs. State of Bihar and Another, . Learned Advocate for the applicant further relied upon the decision of the Hon''ble Supreme Court in the case of Kishan Singh (D) through LRs. Vs. Gurpal Singh and Others, and submitted that if there is delay in filing the F.I.R. and delay is not properly explained, and if it is alleged that the same is filed with a sole intention of harassing the accused, it can be said to be an abuse of process of law, and therefore, F.I.R. can be quashed. Learned Advocate further relied upon the decision of the Hon''ble Supreme Court in the case of Paramjeet Batra Vs. State of Uttarakhand and Others, , and submitted that if a dispute which is essentially of a civil nature is given a cloak of criminal offence, in such a situation, the High Court should not hesitate to quash the criminal proceedings to prevent an abuse of process of Court.

Mr. K.P. Raval, learned Additional Public Prosecutor mainly submitted that in the F.I.R. filed by the complainant there are specific allegations with regard to forge signatures of the complainant and his relatives in the Power of Attorney dated 3-3-2000, and therefore, the ingredients of the alleged offences punishable under Secs. 465, 467, 468, 471 and 114 of the I.P.C. are made out. Leaned A.P.P. further submitted that on the ground of delay in lodging the F.I.R., this Court may not quash the F.I.R. learned A.P.P. further submitted that merely because the complainant has not initiated the civil proceedings, it does not mean that he cannot file the criminal complaint against the accused if they have committed the alleged offence, and therefore, on this ground also the F.I.R. may not be quashed.

As observed earlier, though the original complainant - respondent No. 2 herein is served in 2010, he has chosen not to remain present in these proceedings. This application is filed in the year 2010 and this Court admitted the application and granted interim relief in favour of the applicant by an order date 2-7-2010. Even thereafter, though me matter was adjourned from time to time, nobody on behalf of the complainant was remained present. Thus, the matter is pending since last more than 4 years and the complainant has chosen not to remain present. It appears that me complainant does not want to proceed further with the matter, and therefore, this Court has no option but to take up the matter for final hearing in absence of the complainant.

I have heard the learned Advocate for the applicant and learned A.P.P. I have perused the documents produced on record and the allegations levelled against the applicant in the F.I.R. From the material produced on record, following facts emerge on record :

"(i) That the complainant himself has stated in the F.I.R. that agreement to sell [Satakhat) is executed on 28-12-1997 between him and the present applicant for me land admeasuring 1936 sq.yards bearing Survey No. 484/1 situated at village Bagdawada. The said document is produced by the applicant at page 20 with the compilation.

(ii) As per the conditions of the Satakhat, the applicant was required to pay total amount of Rs. 7,50,000/- for the said land. Out of the said amount of Rs. 7,50,000/-, Rs. 1,00,000/- was paid by the applicant at the time of execution of the Satakhat.

(iii) As agreed, remaining amount of Rs. 6,50,000/- was to be paid by the applicant within a period of one year from the date of the Satakhat i.e. up to 28-12-1998. If the amount is not paid within a period of one year, the remaining amount was to be paid with 1.5% interest.

(iv) The complainant had received Rs. 1,00,000/- from the applicant at the time of execution of the Satakhat, and thereafter, during the period between 1999 to 2003, he had received Rs. 8,89,000/- from the applicant. Thus, instead of Rs. 7,50,000/-, the complainant received total amount of Rs. 9,89,000/- from the applicant.

(v) On receipt of the payment, the complainant was to execute the Power of Attorney in favour of the applicant.

(vi) That on the basis of the Power of Attorney executed by the complainant and his family members in favour of the applicant, the applicant executed a sale-deed dated 6-3-2000 in favour of one Nandiben, daughter of Bhagvanbhai Dahyabhai Tandel, for the land admeasuring 540 sq.mtrs. of Survey No. 484/1 of village Bagdawada. The revenue entry is also made being Entry No. 9952 on 21-5-2008 in Village Form No. 6 with regard to the aforesaid registered sale-deed.

(vii) The applicant executed another sale-deed dated 27-5-2005 in favour of one Naynaben, daughter of Madhavbhai Dalubhai Tandel for another piece of land admeasuring 540 sq.mtrs. of Survey No. 484/1 of village Bagdawada. The said sale-deed is duly registered before the office of the Sub-Registrar, Valsad. Said sale-deed is produced by way of an additional affidavit at page 46 of the compilation. The revenue entry is also made being Entry No. 9303 on 27-6-2006 in Village Form No. 6 with regard to the aforesaid registered sale-deed."

Thus, from the aforesaid facts, it reveals that the applicant had paid a total sum of Rs. 9,89,000/- (i.e. Rs. 7,50,000/- being the amount of consideration plus interest on delayed payment as per the terms of the Satakhat). Thus, there is substance in the submission advanced by the learned Counsel for the applicant that after the receipt of the amount of consideration of more than Rs. 7,50,000/-, the complainant himself executed the said Power of Attorney for the land in question, and therefore, there is no question of forgery of the said document as alleged in the F.I.R.

Now, so far as the sale-deeds executed by the applicants are concerned, it appears that the applicant executed two different sale-deeds in favour of two different persons on 6-3-2000 and 27-5-2005 as a Power of Attorney holder of the complainant and his family members. So far as the sale-deed dated 27-5-2005 is concerned, an entry is made in the revenue record - Village Form No. 6 in the year 2006. The sale-deeds are registered documents and the entries made in the revenue record are also public documents. Thus, the explanation given by the complainant in the F.I.R. that he came to know about the fact of applicant sold the land in favour of Nandiben only when he had gone to the office of the Gram Panchayat before about 7 months from the date of filing of the F.I.R., is prima facie not required to be believed considering the public documents which are produced on record. The story narrated by the complainant is prima facie not required to be believed on account of the fact that the sale-deed dated 27-5-2005 executed by the applicant as a Power of Attorney of the complainant in favour of Naynaben is a registered sale-deed for which the entry is also made in the revenue record in the month of June, 2006. Therefore, it appears that the complainant has suppressed this material fact in the F.I.R. filed by him.

From the aforesaid, it is prima facie clear that the complainant has suppressed the aforesaid aspect and from the registration of the sale-deed of 2005 and the entry made in the revenue record in the month of July, 2006, it can be said that there is gross delay in lodging the F.I.R., and therefore, the complainant has suppressed the said fact and the complainant has not stated the said fact in the F.I.R. registered by him.

The contention raised by the learned Advocate for the applicant has substance that a man of ordinary prudence would immediately file civil proceedings for cancellation of the sale-deed if the same is based on a forged Power of Attorney. However, in the present case, as observed earlier, though it is alleged by the complainant that the Power of Attorney is forged and on the basis of the said forged Power of Attorney, applicant has executed sale-deed in favour of Nandiben, he has not initiated any civil proceedings for cancellation of the said sale-deed, and therefore, also the story put forward by the complainant is not required to be accepted.

The Hon''ble Supreme Court in the case of Md. Ibrahim and Others Vs. State of Bihar and Another, , has observed as under :

"7. This Court has time and again drawn attention to the growing tendency of complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject me accused to harassment. Criminal Courts should ensure that proceedings before it are not used for setting scores or to pressurise parties to settle civil disputes. But at the same, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. (See : G. Sagar Suri and Another Vs. State of U.P. and Others, , and Indian Oil Corporation Vs. NEPC India Ltd. and Others, . Let us examine the matter keeping the said principles in mind."

The Hon''ble Supreme Court in another decision rendered in the case of Kishan Singh (D) through LRs. Vs. Gurpal Singh and Others, , has observed as under :

"24. It is to be noted that the appellants'' father Kishan Singh lodged F.I.R. No. 144 of 2002 on 23-7-2002 through his Attorney Jaswant Singh Mann under Secs. 420, 323, 467, 468, 471 and 120B I.P.C., against the respondents. The allegations made in the F.I.R. were substantially similar to the allegations made by the appellants in Civil Suit No. 1075 of 1996, which had been decided against them. It is evident that the aforesaid F.I.R. was filed with inordinate delay and there has been no plausible explanation for the same. The appellants lodged the aforesaid F.I.R. only after meeting their Waterloo in the Civil Court. Thus, it is evident that the F.I.R. was lodged with the sole intention of harassing the respondents and enmeshing them in long and arduous criminal proceedings. We are of the view that such an action on the part of the appellants'' father would not be bona fide, and the criminal proceedings initiated by him against the respondents amount to an abuse of the process of law."

The Hon''ble Supreme Court in the decision rendered in the case of Paramjeet Batra Vs. State of Uttarakhand and Others, , has observed as under :

"7. While exercising its jurisdiction under Sec. 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. 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 criminal proceedings to prevent abuse of process of Court."

From the decision of the Hon''ble Supreme Court referred to hereinabove, it is clear that while exercising the jurisdiction under Sec. 482 of the Criminal Procedure Code, the High Court has to be cautious and such 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. A complaint disclosing civil transactions may also have a criminal texture. I am conscious of the aforesaid ratio laid down by the Hon''ble Supreme Court in the various decisions, however, at the same time, the Hon''ble Supreme Court has further observed that "but the High Court must see whether dispute which is essentially 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, the High Court should not hesitate to quash criminal proceedings to prevent the abuse of process of Court". If the ratio laid down by the Hon''ble Supreme Court is applied in the present case, it is clear that the complainant has not at all initiated any civil proceedings though the dispute is of a civil nature and as observed hereinabove the complainant ought to have initiated the civil proceedings for cancellation of the sale-deed executed by the applicant as a Power of Attorney holder of the complainant. But, he has chosen not to initiate the same instead he filed the impugned complaint with a view to pressurize the applicant with a mala fide intention and with a view to harass him after receipt of the total amount of Rs. 9,89,000/- (with interest) and that too by suppressing the material fact with regard to the sale-deed executed by the applicant in favour of Naynaben on 27-5-2005. Therefore, there is a gross delay in filing the F.I.R., which is unexplained. Thus, from the facts and circumstances of the present case, it is crystal clear that the impugned F.I.R. is nothing but gross abuse of process of the Court, and therefore, in the interest of justice the same is required to be quashed and set aside qua the applicant. Hence, the F.I.R. bearing C.R. No. I-41 of 2010 registered with Valsad City Police Station is hereby quashed and set aside qua the applicant. Rule is made absolute. No order as to cost.