Madhavbhai Babubhai Matiya vs State Of Gujarat And Ors

A.S. Supehia, J

1 . RULE. Learned Additional Public Prosecutor Mr. Soni waives service of notice of Rule for respondent No. 1.

2 . The present application has been filed seeking quashing and setting aside the F.I.R. being C.R. No. I-4 of 2014 dated 04.01.2014 registered with Rajkot Taluka Police Station, Rajkot City, Dist: Rajkot for the offences punishable under Sections 406 and 420 of the Indian Penal Code, 1860 ("the IPC") and under Sections 5, 40 and 42 of the Gujarat Money Lenders Act, 2011 ("the Money Lending Act").

It is submitted that the applicant is falsely arraigned as accused in connection with F.I.R. No. I-C.R. No. 4 of 2014 registered with Rajkot Taluka Police Station, Rajkot City, Dist: Rajkot for the offences punishable under Sections 406 and 420 of the IPC and under Sections 5, 40 and 42 of the Money Lending Act.

4 . The brief facts of the case is that the essential issue between the parties is with respect to parcels of land bearing survey No. 252 paiki 1 and 332 paiki 1 situated at Village Sardhar in Rajkot District.

4.1. It is stated that the name of Smt. Shantaben Bhagwanjibhai Khunt, wife of the first informant, came to be mutated in the revenue record vide entry No. 6551 with respect to the land bearing survey No. 252 paiki 1 and 332 paiki 1 situated at Gam Sardhar, District : Rajkot on 02.01.2006. The said lands came within the share of Smt. Shantaben Bhagwanjibhai Khunt in a family partition.

4.2. On 04.01.2011, Smt. Shantaben Bhagwanbhai Khunt sold the land bearing revenue survey No. 252 paiki 1 admeasuring about 8094 sq.mtrs. to Bhimabhai Merambhai Meer (Bharwad) by way of entering into a registered sale deed. While executing the sale deed, sons of the vendor, i.e., Shaileshbhai Bhagwanjibhai Khunt and Sureshjibhai Bhanwanjibhai Khunt, have signed as witnesses.

4.3. Thereafter, on 18.04.2011, Smt. Shantaben Bhagwanjibhai Khunt instituted a civil suit being Regular Civil Suit No. 106 of 2011 against Bhimabhai Merambhai Meer (Bharwad) in the Court of Senior Civil Judge, Rajkot with a prayer to cancel the registered sale deed No. 109 dated 04.01.2011 executed by her in favour of Bhimabhai Merambhai Meer (Bharwad). The said suit came to be dismissed by the Court below vide judgment and order dated 17.04.2013.

4.4. It is stated thereafter, Bhimabhai Merambhai Meer (Bharwad) after purchasing the said land, made an application to the Mamlatdar, Rajkot for mutating his name in the revenue record with respect to the land bearing survey No. 252 paiki 1, which he purchased from Smt. Shantaben Bhagwanjibhai Khunt, wife of the first informant, vide sale deed dated 04.01.2011. The Mamlatdar issued notice under Section 135(D) of the Gujarat Land Revenue Code, 1879 to the vendor, who objected to the certification of the name of Bhimabhai Merambhai Bharwad. The Mamalatdar converted the said proceedings into Takrari Case No. 46 of 2011 and after hearing all concerned, vide order dated 30.06.2011, rejected the objections of the vendor Shantaben Bhagwanjibhai Khunt and certified the entry in the name of Bhimabhai Merambhai Bharwad.

4.5. It is the case of the applicant that the wife of the first informant - Shantaen Bhagwanjibhai Khunt through her registered power of attorney-holder Madhavbhai Vijaybhai Matiya - the applicant had sold the land bearing revenue survey No. 332 paiki 1 to Bhimabhai Mermabhai Meer (Bharwad) vide registered sale deed dated 08.02.2011. Bhimabhai Merambhai Meer (Bharwad) had made an application before the Mamlatdar for mutating his name in the revenue record. The Mamlatdar thereafter issued notice under Section 135(D) of the Gujarat Land Revenue Code to the wife of the first informant, who objected to the certification of the name of Bhimabhai Merambhai Bharwad. The Mamlatdar converted the said proceedings into Takrari Case No. 47 of 2011 and after hearing all concerned, including Bank of India, vide order dated 30.06.2011 rejected the objections of the wife of the first informant - Shantaben Bhagwanjibhai Khunt and Bank of India and certified the entry in the name of Bhimabhai Merambhai Meer (Bharwad).

5 . Learned advocate Mr. Jasani appearing for the applicant has submitted that the F.I.R. is nothing but an abuse of process of law since the wife of the first informant has instituted a filed civil suit against Bhimabhai Merambhai Meer (Bharwad) with respect to the land in question. He has submitted that the same has already been dismissed by the competent Civil Court. After failing in the competent Civil Court, the impugned F.I.R. has been filed by Bhimabhai Merambhai Meer (Bharwad).

5.1. Learned advocate Mr. Jasani has submitted that the dispute is of a civil nature as the wife of respondent No. 2 has already instituted a suit being Regular Civil Suit No. 106 of 2011 against Bhimabhai Merambhai Meer (Bharwad) and the said suit came to be dismissed by the concerned court.

5.2. Learned advocate Mr. Jasani has submitted that the impugned F.I.R. is purely a counterblast after the wife of the complainant having lost in the competent civil proceedings as well as revenue proceedings.

5.3. Learned advocate Mr. Jasani has submitted that the respondent No. 2 had already filed an application against the applicant with respect to the similar allegations, in the year 2011, the same was registered as a Chapter Case which was ultimately dismissed.

5.4. Learned advocate Mr. Jasani has submitted that the alleged incident, as per the F.I.R., has been committed in the year 2011, however, the impugned F.I.R. has been filed after a span of three years.

5.5. Learned advocate Mr. Jasani has submitted that the dispute is of a civil nature as the revenue proceedings are concluded in favour of Bhimabhai Merambhai Meer (Bharwad).

5.6. Learned advocate Mr. Jasani has submitted that the F.I.R. has been filed with an oblique motive of using police machinery to shortcut the civil disputes. He has submitted that the impugned F.I.R. is frivolous, vexatious, malicious and as it does not prima facie constitute commission of any criminal offence and therefore, it requires to be quashed.

5.7. Learned advocate Mr. Jasani has thus submitted that the entire dispute is of private, frivolous in nature and no criminality is made out in the F.I.R.

5.8. Learned advocate Mr. Jasani has submitted that without prejudice to any other rights and contentions, the impugned F.I.R. is even otherwise lodged to pressurize the applicant to solve the private dispute.

5.9. Learned advocate Mr. Jasani has submitted that the continuation of the impugned F.I.R. amounts to sheer abuse of process of law, in view of culmination of civil as well as revenue proceedings in favour of the applicant.

5.10. Learned advocate Mr. Jasani has further submitted that the impugned F.I.R. is required to be quashed and set aside on the ground of delay since the same is filed after three years from the dismissal of the suit by making the provisions of the Money Lending Act after the wife of the respondent No. 2 lost in the Civil Court. He has submitted that none of the authorities have accepted the case of the wife of the respondent No. 2 and for the very cause and dispute, the impugned F.I.R. has been lodged.

5.11. Learned advocate Mr. Jasani has submitted that offence of the Money Lending Act is not established since the borrowing of money was in fact in lieu of the transaction, which had taken place in the year 2011. He has submitted that these aspects were considered by the Civil Court and the Civil Court has held against the wife of the respondent No. 2 for the very same aspect and hence, the impugned F.I.R. is required to be quashed and set aside. He has also placed reliance on the judgment of the Supreme Court in the case of State of Haryana Vs. Bhajanlal & Ors, reported in AIR 1992 SC 604.

Learned Additional Public Prosecutor Mr. Soni has submitted that the investigation is over and the chargesheet is filed. The investigation reveals that the fact that for the very same dispute, the suit being Regular Civil Suit No. 106 of 2011 was instituted before the Senior Civil Judge, Rajkot praying for cancellation of registered sale deed No. 109 dated 04.01.2011 executed by the wife of the respondent No. 2 and the same was dismissed by the judgment and order dated 17.04.2013.

6.1. Learned Additional Public Prosecutor Mr. Soni has further submitted that the Investigating Officer has recorded the statement of various witnesses in this regard and the investigation reveals that the wife of the respondent No. 2 through the power of attorney executed the registered power of attorney in the name of the applicant on 04.01.2011 with respect to land bearing survey No. 332 paiki 1 and the same is signed and witnessed in presence of sons of the vendor, i.e., Shaileshbhai Bhagwanjibhai Khunt and Sureshjibhai Bhanwanjibhai Khunt.

6.2. Thereafter, the applicant on 08.02.2011 executed the registered sale deed in the name of Bhimabhai Mermabhai Meer (Bharwad) with respect to the land bearing survey No. 382 paiki 1. Thereafter, the applicant on 08.02.2011 executed a registered sale deed in the name of Bhimabhai Merambhai Meer (Bharwad). The respondent No. 2 filed a compliant in 2011 which was registered as a Chapter Case. Learned Additional Public Prosecutor has submitted that no offence under Gujarat Money Lending Act is established against the applicant as per the investigation.

Learned advocate Mr. Majmudar appearing for the respondent No. 2 has submitted that the impugned F.I.R. may not be quashed and the trial may not be stalled since the chargesheet is already filed.

8 . I have heard the learned advocates for the respective parties and perused the papers of the chargesheet as well as the documents on record. The contents of the F.I.R. reveal that the complainant has alleged that the applicant had by fraud obtained the signature of his wife on the documents pertaining to land, however, the said document in fact pertained to surely of Rs. 1,50,000/-. Thus, it is alleged that on the pretext of obtaining signature on the surety documents, the applicant by fraud had obtained signatures by his wife on land documents.

It is not in dispute that the wife of the respondent No. 2, for the very same dispute had instituted a civil suit being Regular Civil Suit No. 106 of 2011 before the Senior Civil Judge, Rajkot praying for cancellation of the registered sale deed No. 109 dated 4. 01.2011 executed by her in favour of Bhimabhai Mermabhai Meer (Bharwad), however, the same was dismissed by the judgment and order dated 17.04.2013. Thereafter, the impugned F.I.R. has been lodged by the respondent No. 2 on 4. 01.2014 alleging that signatures of the wife of the respondent No. 2 was taken on the documents of sale by fraud. For the very same land, the aforementioned civil suit was instituted, which was dismissed. A perusal of the F.I.R. reveals that no reason for the delay of F.I.R. has been given by the respondent No. 2 in the F.I.R. Admittedly, the sale deed was entered on 04.01.2011, however, the impugned F.I.R. alleging fraud on the part of the applicant has been filed on 04.01.2014 after the dismissal of the suit on 17.04.2013. The investigation does not reveal any offence under the Money Lending Act. It appears that the civil dispute has been given colour of criminal liability in order to extract money and harass the applicant.

A useful reference can be made to the judgment of the Apex Court in case of Kishan Singh (Dead) Through Legal Heirs V/s. Gurpal Singh & Ors., (2010) 8 SCC 775, more particularly Paragraph No. 22 thereof.

"22. 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 and Ors. v. Maharaj Singh and Anr., AIR 1982 SC 1238; State of Haryana and Ors. v. Ch. Bhajan Lal and Ors., AIR 1992 SC 604 : (1992 AIR SCW 237); G. Sagar Suri and Anr. v. State of U.P. and Ors., AIR 2000 SC 754; and Gorige Pentaiah v. State of A.P. and Ors., (2008) 12 SCC 531) : (AIR 2008 SC (Supp) 634 : 2008 AIR SCW 6901)."

11 . The impugned F.I.R. is nothing but abuse of process of law. The petition succeeds. Thus, the impugned F.I.R. being C.R. No. I-4 of 2014 dated 04.01.2014 registered with Rajkot Taluka Police Station, Rajkot City, Dist: Rajkot as well as all consequential proceedings arising out of the impugned F.I.R. are hereby quashed and set aside. Rule made absolute.