Allowed

Bhimjibhai Narsibhai Malavia v. State of Gujarat

Gujarat HC10 Dec 2018CR.MA/6381/2009

Case brief

AI extract

What is this about?

The High Court allowed three criminal miscellaneous applications filed by accused persons seeking to quash a Second FIR (No. I-C.R.No.10/2009). The Court held that filing a second FIR for the same transaction after a charge-sheet was already filed in a first FIR was impermissible. The dispute was found to be purely civil in nature and cannot be harassed via criminal proceedings.

What did the court decide?

The impugned FIR (C.R.No.I-10/2009) filed before DCB Police Station, Surat is quashed and set aside, and the criminal miscellaneous applications are allowed.

Bhimjibhai Narsibhai Malavia Vs State of Gujarat — Quashing and FIR | Gujarat HC (2018)

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R/CR.MA/6380/2009 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL MISC.APPLICATION NO. 6380 of 2009 With R/CRIMINAL MISC.APPLICATION NO. 6381 of 2009 With R/CRIMINAL MISC.APPLICATION NO. 6383 of 2009

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========================================================== VINUBHAI HARIBHAI MALAVIA Versus STATE OF GUJARAT

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==========================================================

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Appearance:

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CRIMINAL MISC.APPLICATION NO. 6380 of 2009 MR NM KAPADIA(394) for the PETITIONER(s) No. 1 MR HARNISH V DARJI(3705) for the RESPONDENT(s) No. 2 MS KRINA CALLA, APP for the RESPONDENT(s) No. 1

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CRIMINAL MISC.APPLICATION NO. 6381 of 2009

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MR NM KAPADIA(394) for the PETITIONER(s) No. 1 MR HARNISH V DARJI(3705) for the RESPONDENT(s) No. 2 MS KRINA CALLA, APP for the RESPONDENT(s) No. 1

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CRIMINAL MISC.APPLICATION NO. 6383 of 2009

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MR HEMANT B. RAVAL for the PETITIONER(s) No. 1-2 MR R J. GOSWAMI for the PETITIONER(s) No.3-6 MR HARNISH V DARJI(3705) for the RESPONDENT(s) No. 2 MS KRINA CALLA, APP for the RESPONDENT(s) No. 1

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==========================================================

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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI

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Date : 10/12/2018

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COMMON ORAL ORDER

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1. All the three applications have been filed by the applicants- accused in respect of FIR being I-C.R.No.10/2009 registered with DCB police station, Surat for the offences punishable under section 406, 420, 468, 471, 120-B and 114 of the Indian Penal Code. The applicants have prayed to quash and set aside the said FIR. Hence, all the applications

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Page 1 of 11

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R/CR.MA/6380/2009 ORDER

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were heard together and this common order is
being passed.

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2. At the outset, it may be stated that the applicant no.1 Lakhiben w/o Parsottam Magan in Criminal Misc. Application No.6383 of 2009 has already expired and therefore the said application does not survive qua applicant No.1.

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As per the case of the applicants, the respondent no.2-complainant Baldevbhai Ramjibhai Patel lodged a complaint before the DCB police station, Surat on 22.05.2009 against the applicants alleging inter alia , that he had purchased the plot Nos.5 and 6 out of Survey No.20 of village Padesana, from the original owners Lakhiben wife of Parsottambhai, Maniben Dalpatbhai, Ratilal Parbhubhai and Sumanben Parbhubhai, whose names were shown as the owners in the village form no.7/12 and the complainant had paid Rs.30,000/- per plot to the said owners. The said owners had issued the possession receipt on 12.02.1994 and handed over the possession of the said plots. Thereafter, a registered sale-deed was executed on 29.03.2000 in respect of the said plots. It was further alleged that the name of complainant was also entered in the city survey record and in the office of Municipal Corporation. However, in the year 2006, he came to know that the

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Page 2 of 11

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R/CR.MA/6380/2009 ORDER

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original owners Ratilal Parbhubhai and others
had sold the said plots to one Bhimjibhai
Narsinhbhai Malavia by executing a deed on
12.05.2006. The complainant and other plot
holders therefore had met the said Bhimjibhai
Malavia, his partner Vinubhai Haribhai and
their legal adviser advocate Ashish Modi in
the office of Vinubhai Haribhai, and at that
time said Vinubhai Haribhai had informed the
complainant and other plot holders that the
land was purchased by them from the original
owners, and that if they wanted to purchase
the said plots, they would have to pay 60%
amount of the present market value of the
said plots. It was also alleged that
thereafter the Surat Builder Association had
published a public notice on 13.05.2009 in
the local newspaper to the effect that if any
body had any objection against the said
Vinubhai Haribhai and others, they could come
personally and make representation to the
said Association. The complainant thereafter
had filed the complaint, which was registered
as stated hereinabove.

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4. Learned Advocate Mr.N.M.Kapadia and learned Advocate Mr.R.J.Goswami for the applicants taking the Court to the various documents on record submitted that the original owners had executed the registered sale-deed in favour of Bhimjibhai Malavia in respect of land

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Page 3 of 11

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R/CR.MA/6380/2009 ORDER

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bearing survey no.20 of village Pandesara on
20.05.2006 and the entry in this regard was
also recorded on 19.09.2006. Thereafter, one
complaint was lodged by one Kiritbhai
Icecreamwala against the said Bhimjibhai
Malavia and the original owners Ratilal and
others on 07.11.2006, which was registered at
Pandesara Police station as FIR No.C.R.I-
316/2006. The Investigating Officer after
carrying out the investigation in the said
complaint had submitted the the charge-sheet
on 27.01.2007 against Ratilal Patel only,
showing Bhimjibhai as the witness. They also
submitted that Mamlatdar in the revenue
proceedings filed by the complainant
Baldevbhai, the said Kiritkumar Icecreamwala
and others, had also approved the revenue
entry no.889 in favour of Bhimjibhai Malavia
on 17.02.2007. Thereafter, the said
complainant Baldvebhai alongwith the said
Kiritbhai Icecreamwala and others had also
filed a civil suit being No.108/2007 through
their power of attorney holder in the court
of Civil Court, Surat in which, there was a
reference of the complaint No.316/2006 filed
by Kiritbhai Icecreamwala. They further drew
the attention of the Court that the Civil
Court had not granted any temporary
injunction in the application at Exh.5 in the
Civil Suit No.108/2007 filed by the
complainant and others, however, the Court

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Page 4 of 11

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R/CR.MA/6380/2009 ORDER

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had directed the parties to maintain status
quo. The applicant Bhimjibhai Malavia, who
was the defendant in the suit had challenged
the said order by filing Appeal from Order
No.465 of 2007 in which, the order passed by
the Civil Court was set aside and specific
finding with regard to possession of the
Bhimjibhai Malavia was recorded. They also
submitted that after having failed in both
the proceedings, the complaint was filed by
respondent-Baldevebhai Patel in respect of
dispute which was pending before the Civil
Court.

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Learned advocates for the applicants relying upon the decision of the Supreme Court in the case of Amitbhai Anilchandra Shah Vs. Central Bureau of Investigation and Anr. reported in ( 2013) 6 SCC 348 submitted that the second FIR in respect of the same occurrence of incident was not permissible and in the instant case, charge-sheet having already been filed against applicant Ratilal Patel pursuant to the complaint filed by Kiritbhai Icecreamwala, the present FIR filed at the instance of respondent Baldevbhai Patel containing the same allegations against the said Bhimjibhai and Ratibhai and others was not maintainable. Reliance was also placed on the decision of the Supreme Court in the case of Mohammed Ibrahim and Ors. Vs. State

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Page 5 of 11

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R/CR.MA/6380/2009 ORDER

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of Bihar and Anr. reported in (2009) 8 SCC
751 to submit that ingredients of offences
under sections 464, 467 and 471 with regard
to false documents were not made out from the
bare reading of the complaint itself, and
that the criminal machinery should not be
allowed to be used for settling the score of
the disputes which are of civil nature.

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6.However, learned Advocate Mr.Harnish Darji
appearingfortherespondentno.2-
complainant in all the three applications
submitted that the applicants are named in
the FIR and the applicant Vinubhai Patel has
also criminal antecedents. He also submitted
that whether the applicants have forged the
documents or not would be a matter of
evidence to be led at the time of trial and
therefore, the present applications may not
be entertained at this stage.

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7.In the instant applications, there are
certain undisputed facts. It is not disputed
that the respondent No.2- complainant
Baldevbhai alongwith Kiritbhai Icecreamwala
and others had filed a civil suit being
No.108/2007 against the present applicants in
respect of the land in question and the civil
court had directed the parties to maintain
status quo. Being aggrieved by the said
order, the applicant Bhimjibhai Malavia had

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Page 6 of 11

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R/CR.MA/6380/2009 ORDER

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preferred an Appeal from Order being
No.465/2007, and the said order of the status
quo was set aside by this Court. It is also
not disputed that earlier one complaint being
FIR No.C.R.I-316/2006 was filed by Kiritkumar
Icecreamwala against Bhimjibhai Malavia and
the original owners in respect of land in
question, in which, the charge-sheet has
already been filed on 27.01.2007 against
Ratilal Patel only and not against Bhimjibhai
Malavia. On the contrary Bhimjibhai Malavia
has been cited as witness in the said charge-
sheet. The Mamlatdar had also approved the
revenue entry No.889 made in favour of
Bhimjibhai Malavia in the RTS case No.35/2006
vide the order dated 17.02.2007. It is also
not disputed that in the Civil Suit
No.108/2007 filed by respondent Baldevbhai
Patel, Kirtibhai Icecreamwala and others, the
reference of the FIR being C.R.-I No.316/2006
was also made. Hence, the respondent
Baldevbhai Patel- complainant, who was also
one of the plaintiffs in the said Civil Suit
No.108/2007 was very much aware about the
complaint filed by his co-plaintiff Kiritbhai
Icecreamwala in respect of the said plots in
question, however, he did not take any action
at the relevant time, and filed the present
complaint on 22.05.2009 after having lost in
the civil proceeding at the interim stage.

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Page 7 of 11

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R/CR.MA/6380/2009 ORDER

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As rightly submitted by learned advocates for the applicants, a second FIR in respect of an offence or different offences committed in the course of the same transaction is not only impermissible but it violates Article 21 of the Constitution, as held by the Supreme Court in the case of Amitbhai Anilchandra Shah Vs. Central Bureau of Investigation and Anr. (Supra).

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It is also a settled legal position that courts should ensure that criminal proceedings are not misused for settling scores or pressurising parties to settle civil disputes. It has been held in case of Mohammed Ibrahim and Ors. Vs. State of Bihar and Anr. (Supra), that:

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“7. This Court has time and again drawn attention to the growing tendency of the complaints 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 the accused to harassment. Criminal Courts should ensure that proceedings before it are not used for settling scores or to pressurise parties to settle civil disputes. But at the same time, 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, even if they also amount to civil disputes. (See G. Sagar Suri V. State of U.P. (2000) 2 SCC 636 and Indian Oil Corporation V. NEPC

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Page 8 of 11

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R/CR.MA/6380/2009 ORDER

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India Ltd. (2006) 6 SCC 736). Let us examine the matter keeping the said principles in mind.”

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It is also held in case of Joseph Salvaraja Vs. State of Gujarat and Ors. reported in (2011) 7 SCC 59, as under:

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“17. In our opinion, the matter appears to be purely civil in nature. There appears to be no cheating or a dishonest inducement for the delivery of property or breach of trust by the Appellant. The present FIR is an abuse of process of law. The purely civil dispute, is sought to be given a colour of a criminal offence to wreak vengeance against the Appellant. It does not meet the strict standard of proof required to sustain a criminal accusation. In such type of cases, it is necessary to draw a distinction between civil wrong and criminal wrong as has been succinctly held by this Court in Devendra Vs. State of U.P., 2009 (7) SCC 495, relevant part thereof is reproduced hereinbelow:

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"27......A distinction must be made between a civil wrong and a criminal wrong. When dispute between the parties constitute only a civil wrong and not a criminal wrong, the courts would not permit a person to be harassed although no case for taking cognizance of the offence has been made out."

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In fact, all these questions have been elaborately discussed by this Court in the most oft quoted judgment in 1992 (Suppl) 1 SCC 335, State of Haryana Vs. Bhajan Lal, where seven cardinal principles have been carved out before cognizance of offences, said to have been committed, by the

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Page 9 of 11

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R/CR.MA/6380/2009 ORDER

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accused is taken. The case in hand unfortunately does not fall in that category where cognizance of the offence could have been taken by the court, at least after having gone through the F.I.R., which discloses only a civil dispute.”

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11. Having regard to the facts and circumstances of the case it clearly transpires that the dispute of civil nature has been sought to be converted in to criminal proceedings, after the complainant did not succeed to get interim relief in the suit filed by him and others against the applicants- accused. Even otherwise, the charge-sheet has already been filed in respect of the FIR being No.C.R.I316/2006 containing the same set of allegations against the accused Ratilal Patel and hence the second complaint/FIR lodged by the respondent No.2- complainant Baldevbhai Patel against the applicants appears to be only vexatious and abuse of process of law. The Court therefore is of the opinion that it is a fit case to quash the FIR being No.C.R.I-10/2009.

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12. In that view of the matter, the impugned FIR being C.R.No.I-10/2009 filed before DCB Police Station, Surat is hereby quashed and set aside qua all the applicants-accused. It is clarified that the Court has not expressed any opinion on the merits of the Charge-sheet filed in respect of the FIR No.C.R.I-316/2006

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Page 10 of 11

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R/CR.MA/6380/2009 ORDER

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and the same shall be proceeded by the Court
against the accused in the said case in
accordance with law. All the three Criminal
Misc. Applications stand allowed accordingly.
Direct service is permitted.

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(BELA M. TRIVEDI, J)

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TUVAR

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Page 11 of 11

Bhimjibhai Narsibhai Malavia v. State of Gujarat

Case brief

What is this about?

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Bhimjibhai Narsibhai Malavia v. State of Gujarat

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