Quashed

Jayprakash Kangad S/O Kanabhai Kangad v. State of Gujarat

Gujarat HC17 Feb 2022CR.MA/6186/2016

Case brief

AI extract

What is this about?

This criminal miscellaneous application sought quashing of an FIR alleging forgery in a property sale dispute. The High Court quashed the proceedings, holding the FIR was maliciously filed with malafide intentions to harass petitioners following unsuccessful civil litigation on the same transaction.

What did the court decide?

The FIR (C.R. No. I- 42 of 2016) and all proceedings arising therefrom are quashed and set aside qua the petitioners.

Jayprakash Kangad S/O Kanabhai Kangad Vs State of Gujarat — Property and Title | Gujarat HC (2022)

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R/CR.MA/6186/2016 JUDGMENT DATED: 17/02/2022

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/CRIMINAL MISC.APPLICATION NO. 6186 of 2016

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

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1 Whether Reporters of Local Papers may be allowed to see theYes judgment ? 2 To be referred to the Reporter or not ? No Yes 3 Whether their Lordships wish to see the fair copy of the judgmentNo ? 4 Whether this case involves a substantial question of law as to theNo interpretation of the Constitution of India or any order made thereunder ?

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JAYPRAKASH KANGAD S/O KANABHAI KANGAD & 1 other(s)

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Versus

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STATE OF GUJARAT & 1 other(s)

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Appearance: MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1,2 MR SHAIVAL M PATEL for the Respondent(s) No. 2 MR. JAYNEEL S PARIKH(7062) for the Respondent(s) No. 2 MS MAITHILI D MEHTA ADDITIONAL PUBLIC PROSECUTOR for the Respondent(s) No. 1

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CORAM: HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

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Date : 17/02/2022

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ORAL JUDGMENT

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Heard learned Advocate Shri Ashish Dagli on behalf of the petitioners, learned Additional Public Prosecutor Ms. Maithili D. Mehta on behalf of respondent no.1- State and learned Advocate Shri Shaival M. Patel on behalf of respondent no.2.

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R/CR.MA/6186/2016 JUDGMENT DATED: 17/02/2022

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By way of this petition, the petitioners seek quashment of FIR being C.R. No. I- 42 of 2016 registered with ‘A’ Division Police Station, Rajkot City on 17.02.2016 inter alia alleging offences punishable under Sections 420, 406, 467, 468, 471 and 120B of the Indian Penal Code against the present petitioners.

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Learned Advocate Shri Dagli would submit that the allegations as mentioned in the FIR being that the complainant and other partners had purchased a property named “Jani Building” from its owner vide its registered sale-deed dated 31.01.1997. It is further submitted that the complainant inter alia alleges that he had 16.66% share in the property in question. That the allegation against the petitioners being that the petitioners had entered into a criminal conspiracy and in furtherance of the same had prepared a forged agreement to sale dated 12.11.2001 and furthermore a receipt dated 14.11.2001 showing the entire sale consideration having been received by the complainant which agreement to sale was registered and whereas it is alleged that on that date, the petitioners were present at Jamnagar at his job in the Water works Department.

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It is submitted by learned Advocate Shri Dagli that initially the complainant had submitted an application to the Police Commissioner making the same allegations and whereas the Police Commissioner had entrusted inquiry with regard to the application preferred by the complainant to the ‘A’ Division Police Station, Rajkot City and whereas vide communication dated 17.07.2014 the Police Commissioner Rajkot had been informed by the Police Inspector that the complainant was not coming to the Police Station to have his statement recorded whereas it is further submitted that the petitioners had remained present and had produced copies of Civil Suits preferred between the parties.

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R/CR.MA/6186/2016 JUDGMENT DATED: 17/02/2022

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Learned Advocate would further submit that as a matter of fact while the impugned FIR had been preferred by the complainant in the year 2016, before filing of the FIR, the complainant had also preferred private complaint before the learned Magistrate being Criminal Inquiry No. 1 of 2016 and whereas according to learned Advocate Shri Dagli while the learned Magistrate had issued inquiry by the concerned Police Station under Section 202 of the Code of Criminal Procedure, the complainant not being satisfied with the same had preferred the impugned complaint.

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Learned Advocate would further draw the attention of this Court to a civil suit preferred by the present complainant being Special Civil Suit No. 198 of 2013 against the present petitioners wherein the complainant had sought for quashing of power of attorney as well as agreement to sale and the sale-deed entered into between the power of attorney holders. Learned Advocate Shri Patel would submit that the learned Civil Court after hearing both the parties, had been pleased to reject the application for interim relief under Exh. 5. Learned Advocate would submit that such order being passed by the learned Civil Court on 23.02.2014, thereafter the complainant had preferred another Civil Suit No. 226 of 2013, for almost very selfsame reliefs and whereas such civil suit came to be dismissed on 02.11.2015.

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Pertinently learned Advocate Shri Dagli would draw the attention of this Court to findings recorded by the learned Civil Court in order dated 23.04.2014 passed in Special Civil Suit No. 198 of 2013. Learned Advocate Shri Dagli would submit that the learned Civil Court had with regard to allegation of forgery inter alia noted that the stamp papers in question, had been purchased by the complainant i.e plaintiff before the Civil Court. It is further observed that the deed dated 12.10.2011, had been prepared by one Advocate Jayantilal K. Tank and the same had been registered. It is further observed that one of the Advocates i.e. Advocate A.N. Trivedi who had

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R/CR.MA/6186/2016 JUDGMENT DATED: 17/02/2022

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prepared the receipt, had submitted an affidavit with regard to the consideration. It is observed by the learned Civil Court that the said Advocate had in his affidavit stated that the plaintiff i.e. the complainant herein and the defendants therein, had approached the concerned learned Advocate for preparing the receipt. It is further submitted that after the receipt had been prepared the learned Advocate had endorsed the same by putting signature and whereas the same had been notarized before Notary P.M. Soneji. Learned Advocate would submit that before the learned Civil Court the complainant had not produced any details with regard to the opinion of the hand writing expert as noticed by learned Civil Court.

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Learned Advocate Shri Dagli would further submit that subsequent to filing of the present FIR, the complainant had also preferred another FIR being C.R. No. I- 69 of 2016 registered with the ‘A’ Division Police Station, Reajkot for offence punishable under Sections 406, 420, 465, 467, 469, 471, 474 and 120 B of the Indian Penal Code. Learned Advocate would submit that the said FIR where the present petitioner no. 2 had been arraigned accused no.9 had been challenged by other accused namely accused no. 1 to 4 by way of Criminal Misc. Application No. 8072 of 2016 and accused no. 5 to 7 by way of Criminal Misc. Application No. 7607 of 2016. Learned Advocate would submit that the entire allegations in the said FIR impugned before this Court in the matters stated above, was with regard to the same transaction and whereas vide an order dated 26.10.2021, the said FIR had been quashed by learned Co-ordinate Bench of this Court more particularly on the ground that there was no material to show that any false documents have been prepared and furthermore the learned Co-ordinate Bench was also concerned with the fact that issues which ought to have been adjudicated by learned Civil Courts were attempted to be dealt with through the police machinery. Learned Advocate would submit that the proceedings initiated by the complainant one after the other , for the very selfsame

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transaction, would clearly show that the complainant was misusing the process of the Court and whereas learned Advocate by relying upon the observations of the learned Civil Court with regard to the forgery would submit that the observations which are unchallenged as of now would clearly show that there was no forgery committed whatsoever. Learned Advocate having regard to the submissions would request this Court to quash the impugned FIR more particularly by holding that the FIR is nothing but an abuse of the process of the Court.

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The petition has been strongly resisted by learned Advocate Shri Shaival Patel who would submit that serious allegations have been levelled against the accused herein and whereas merely because the petitioners had preferred other subsequent proceedings, that would not be mean that the allegations made against the accused – petitioners are in any view diluted. As such upon a specific query by this Court, learned Advocate Shri S.M. Patel would submit that order dated 23.04.2014 by the learned Civil Court refusing interim relief in Special Civil Suit No. 198 of 2013 , still holds good.

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As against the submissions made by learned Advocate Shri Dagli and learned Advocate Shri Patel, learned APP Ms. Mehta would submit that the complainant having preferred subsequent complaint, which has been quashed by this Court, inter alia holding that the dispute between the parties was civil in nature and furthermore in view of the findings by the learned Civil Court with regard to forgery, learned APP would submit that this Court may pass appropriate orders.

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Heard learned Advocates for the parties who have not submitted anything further.

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At the outset it would be required to be noted in furtherance of what has been stated by learned Advocate Shri Dagli that apart from accused no.

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R/CR.MA/6186/2016 JUDGMENT DATED: 17/02/2022

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1 to 4 and 5 to 7 in FIR being C.R. No. I- 69 of 2016 filed by the present complainant, against various accused including petitioner no. 2 herein, the petitioner no. 2 had also preferred an application before this Court praying for quashing of the complaint being Criminal Misc. Application No. 7699 of 2016 and whereas vide order of the same date i.e. today this Court has quashed the complaint against the petitioner no. 2 herein more particularly relying upon observations of the learned Co-ordinate Bench vide order dated 26.10.2021 in Criminal Misc. Application No. 7607 of 2016 and allied matters. It would be further pertinent to mention here that except for the allegation of forgery that has been raised in the present petition, more or less, the allegations in the impugned FIR, and in the FIR quashed by the learned Co-ordinate Bench as well as this Court, filed by the present complainant, is with regard to very selfsame transactions. The issue is in both the FIRs is with regard to agreement to sale in favour of the present petitioners, power of attorney in favour of the present petitioners and later sale-deeds entered into between the parties in which the petitioner no. 2 herein was a witness.

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This Court also at this stage notices the findings by the learned Civil Court with regard to allegations of forgery raised before it in Special Civil Suit No. 198 of 2013. Learned Civil Court has inter alia held that from the record it was clear that the stamp papers upon which the writings were created, ( forged writing were created), had been purchased by the present complainant. The learned Civil Court also relies upon an affidavit filed by learned Advocate who had prepared the receipt whereby the petitioner no. 2 had paid the entire consideration to the complainant that the petitioner and the complainant had jointly gone to the said learned Advocate who had prepared the receipt and whereas the said had been notarized by one learned Advocate Shri P.M. Soneji. Learned Civil Court has observed that the present complainant had not produced any material to controvert the said observations more particularly the complainant having not produced report

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of any handwriting expert before the learned Civil Court. The said observations it appears still hold good between the parties more particularly the order of the learned Civil Court not having been interfered with by a superior Court. This Court has also noticed the fact that in a decision dated 26.10.2021 learned Co-ordinate Bench had noticed that it was only after the complainant had preferred Civil Suits and not having succeeded at interim stage or even at final stage as the case may be in the Civil Suit that after a long delay the complainant had preferred the FIR inter alia alleging forgery this Court further notices observations of the learned Co-ordinate Bench that prima facie the dispute between the parties appears to be a property dispute and whereas such dispute ought to be resolved by the Civil Court and not by involving the police machinery. This Court also notes that the complainant before filing of the complaint had approached the Police Commissioner and whereas in an inquiry upon instructions of the Police Commissioner, the present complainant had not remained present and therefore inquiry had been closed. This Court also notices that prior to preferring of the present FIR the complainant had preferred a private complaint and whereas before the learned Chief Judicial Magistrate, Rajkot and whereas while the learned Magistrate had been pleased to direct inquiry under Section 202 of the Code of Criminal Procedure, the petitioner not being satisfied by the same had preferred the present impugned FIR.

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At this stage this Court proposes to rely upon observations of the Hon’ble Apex Court in case of State of Haryana and others Vs. Bhajan Lal and others, reported in 1992 Supp. (1) SCC 335 where the Hon’ble Apex Court has inter alia laid down certain categories of cases by way of illustrations, where by using extraordinary powers of this Court under Article 226 of the Constitution of India or inherent powers of this Court under Section 482 of the Code of Criminal Procedure, the complaint could be quashed either to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Paragraph No.102 of the said decision being

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R/CR.MA/6186/2016 JUDGMENT DATED: 17/02/2022

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the relevant paragraph is quoted hereinbelow for benefit:

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"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code, which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

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(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

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(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

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(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

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(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

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(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

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(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

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(7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

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Illustration No. (7) of the said decision which speaks about the complaint being maliciously instituted, for a malafide purpose would be specifically applicable to the facts of this case more particularly considering the fact that the complainant had initially approached the learned Civil Court by filing Civil Suits inter alia raising the very selfsame allegations and having not succeeded either at interim stage or at final stage before the learned Civil Courts, the complainant had filed the impugned complaint. Furthermore it would also pertinent to mention at the cost of repetition that the learned Civil Court vide an order at interim stage in the year 2014 had come to a conclusion at that stage that there was no forgery whatsoever and whereas inspite of such an observation, still holding the field, the complainant appears to have preferred the complaint impugned making the very selfsame allegations. It also appears that even after filing of the present FIR, the complainant had preferred further FIR for the very selfsame transaction, against other accused including present petitioner and whereas the said complaint has been quashed by the learned Co-ordinate Bench for certain accused and by this Court for some of the accused relying upon the decision of the learned Co-ordinate Bench. Under such circumstance, it becomes apparent that the proceedings i.e the impugned FIR had been

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instituted by the complainant maliciously with a malafide intention of wreaking vengeance against the petitioners more particularly since he could get favourable decisions before learned Civil Court.

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At this stage this Court deems it appropriate to refer to the law laid down by the Hon’ble Apex Court in case of Kishan Singh ( Dead) through Lrs. vs. Gurpal Singh and others reported in 2010 (8) SCC 775. Para 22 of the said judgement being relevant for the present purpose is quoted for benefit:

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“ 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. Vs. Maharaj Singh & Anr., AIR 1982 SC 1238; State of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors., AIR 1992 SC 604; G. Sagar Suri & Anr. Vs. State of U.P. & Ors., AIR 2000 SC 754; and Gorige Pentaiah Vs. State of A.P. & Ors., (2008) 12 SCC 531).

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14.1 In the instant case, the complainant for the very self-same incident, had filed two suits in the year 2013, being Special Civil Suit No. 198 of 2013 and Special Civil Suit No. 226 0of 2013. Vide an inter order dated 23.04.2014 in Special Civil Suit No. 198 of 2013, the learned Civil Court had refused to grant interim injunction. The present impugned FIR has been filed thereafter on 17.02.2016. Thus it clearly appears as noted by the Hon’ble Apex Court that the complainant was invoking jurisdiction of the

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R/CR.MA/6186/2016 JUDGMENT DATED: 17/02/2022

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NIRU

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criminal Courts with a view to spite the petitioners, more particularly to vent his frustration on not succeeding before the Civil Court. In the considered opinion of this Court such abuse of the law cannot be permitted.

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Having regard to the observations, reasoning and findings as aforesaid in the considered opinion of this Court the present petition deserves consideration.

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The FIR being C.R. No. I- 42 of 2016 registered with ‘A’ Division Police Station, Rajkot City on 17.02.2016 inter alia alleging offences punishable under Sections 420, 406, 467, 468, 471 and 120B of the Indian Penal Code and any other proceedings arising therefrom are quashed and set aside qua the present petitioners. Rule is made absolute to the above extent. Direct service is permitted.

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(NIKHIL S. KARIEL,J)

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Jayprakash Kangad S/O Kanabhai Kangad v. State of Gujarat

Case brief

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Jayprakash Kangad S/O Kanabhai Kangad v. State of Gujarat

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