Sonia Gokani, J.:— Petitioner has approached this Court seeking quashment of the complaint being C.R No. I-122 of 2016 registered with “C” Division Police Station, Jamnagar dated 18.6.2016 for the offences punishable under sections 384, 467, 468, 506(2) and 120B of the Indian Penal Code.
2. It is the case of the petitioner that in relation to the land situated at District: Jamnagar the complaint was filed, which reveals that the dispute relates to the immovable property and thus is essentially a civil dispute. Respondent No. 2 has chosen to abuse the Court process to pressurize the petitioner, and therefore, the petitioner has approached this Court under section 482 of the Code of Criminal Procedure read with Article 226 of the Constitution of India.
3. The complainant has alleged in the complaint that he owns along with his siblings, ancestral land being Revenue Survey No. 1408 admeasuring 17 Vigha land at Pankhana, Gokulnagar, Jamnagar. In the year 1995, the said land had been converted for non-agricultural purpose by virtue of the order of the Collector, Jamnagar district on 21.6.1995 The total area of 19000 sq.mtrs was converted into non-agricultural land, whereas remaining agricultural land admeasuring 8519 sq.mtrs, was converted for non-agricultural purpose vide order dated 5.1.2000 of the Collector. It is also his case that on 17 vigha land, his father Mohanlal Vastabhai Nanda had made 103 plots. Plots No. 45 to 56 admeasuring 32,696 sq.feet had remained with the family and was jointly owned by all the siblings.
4. It is the case of the prosecution that one Bachhubhai Veljibhai Nanda, who is a land broker had approached the compliant Kantilal Mohanlal Nanda with one Parbatbhai Ahir, who was interested in his plot situated at Gokulnagar. On the next day, Bachhubhai Veljibhai Nanda had approached the complainant with his partner Hasmukhbhai Patel to purchase the land in question. He was asked to supply xerox copy of the layout of the entire property to Parbatbhai Ahir. On the next day, Parbatbhai Ahir came with one Ramdevbhai Ahir and Hasmukhbhai Patel and the parties had agreed to sell the said land at Rs. 4221/- per sq.feet and plot No. 56 was decided to be sold at the sum of Rs. 1,13,58,711/-. Rs. 11 lakhs had been given towards consideration.
5. It is his case that while this transaction was going on, both, Ramdevbhai Ahir and Hasmukhbhai Patel, had told the complainant that since the document of power of attorney is illegible, all plot holders were required to give their passport size photographs. This was in relation to plot No. 56 and they had also ensured to make complete payment within two months.
6. It is his say that when the complainant had asked for remaining payment from Hasmukhbhai Patel and Ramdevbhai Ahir, they had given 6 cheques each of Rs. 6 lakhs in the name of all the brothers. Two cheques were in the name of Jagdishbhai Nanda. When they continued to follow them up for making remaining payment, they had threatened them of forcible transfer. However, they did not abide by the promise they made.
7. It is his say that three days before when he had visited the Sub-Registrar's Office, he realized that not only the plot in question, but also the other remaining plots of Gokulnagar being Plots NO. 45 to 55 had been already transferred in the name of one Mr. Jayesh Arvindlal Patel on 27.1.2016 It was realized by him that purchaser was the present petitioner Jayesh Arvindlal Patel, resident of Taluka:Daskroi, District: Ahmedabad and the power of attorney was one Jitudan Nankudan Gadhvi resident of Payalnagar Society, Naroda, Ahmedabad. The witnesses of this registered sale deed were Rabari Hiteshbhai and Patel Indravadan Dineshbhai.
8. On having realized about the forged power of attorney in the name of the siblings, the complaint came to be lodged.
9. It is averred in the complaint that neither the complainant nor any of the siblings has given any power of attorney in favour of Jitudan Nankudan Gadhvi. The Gnon-judicial Stamp No. IN-GJ069659990377850 dated 25.1.2016 of the power of attorney is of the sum of Rs. 10,30,000/-, which has never been purchased by the complainant nor the judicial stamp No. IN-GJ070420695439710 dated 27.1.2 016 was purchased by the complainant. In fact, it is the petitioner who had purchased judicial stamp No. IN-GJ070420695439710 dated 27.1.2016 The total Plots No. 45 to 55 admeasuring 30005 sq. feet are valued at Rs. 12.50 crores. It is alleged that there is a conspiracy hatched by the petitioner and other co-accused resulting into transfer of the valuable land.
10. This Court has heard learned advocate Mr. Bhargav Bhatt appearing with learned advocate Mr. Pravin Gondalia for the petitioner. It is emphatically argued by learned advocate that it is essentially and predominantly a civil dispute, which has been given a colour of criminality after having enjoyed the cash amount of Rs. 11 lakhs mentioned in the complaint and 6 cheques of Rs. 42 lakhs. It is the case of the petitioner that the complainant ought to have approached the Court of law seeking a specific performance of contract, instead he has chosen the short-cut and approached the police.
11. It is further urged that without any rhyme or reason, this case is linked with another matter being C.R No. I-105 of 2016 registered with “C” Division police station, Jamnagar and it is alleged that the modus operandi adopted is more or less the same.
12. It is urged that the petitioner has no criminal antecedents and he is also ready to produce the original power of attorney document for the police to get it examined and proceed with the investigation. The petitioner is also ready to cooperate with the investigation, but to insist on the arrest of the petitioner is unnecessary.
13. The petitioner has not moved any application for anticipatory bail before any competent Court and has approached this Court under section 482 of the Code of Criminal Procedure. As far as the registered sale deed is concerned, a copy of which is brought on the record along with the power of attorney indicating that the complainant and the siblings have confirmed the sale. The thumb impression and finger identification card of each of them is quite apparent.
14. Mr. Mitesh Amin, learned Public Prosecutor appearing for respondent No. 1-State has urged that this is not a case where the Court should be interfering at the stage of investigation. He has urged that this is one of the cases where modus operandi of usurping the properties of the party by getting forged documents of power of attorney executed in the name of the third party is quite apparent. He has, in detail, examined as to how the modus is quite similar to the modus adopted by the the accused in the complaint being C.R No. I-105 of 2016. It is further urged that co-accused Ramdevbhai Ahir and Patel Indravadan Dineshbhai are common accused in the present case being C.R No. I-122 of 2016 as well as in the earlier First Information Report being C.R No. I-105 of 2016.
15. Mr. Premal Rachh appearing for respondent No. 2-complainant has urged that there is no dispute regarding the complainant having received the amount of Rs. 11 lakhs in cash and Rs. 42 lakhs by way of cheques. This entire consideration was towards plot No. 56 and it had nothing to do with other Plots No. 45 to 55. Under the pretext of getting the xerox copy of layout of the entire property for dealing with the petitioner's Plot No. 56, the co-accused created forged power of attorney. Some of the other accused who are also named in the earlier complaint figure in this complaint.
16. Having heard learned advocates for both the sides and also having considered the material on record, this Court would like to, at the outset, reiterate the law laid down in relation to the inherent powers of this Court under section 4 82 of the Code of Criminal Procedure as under:—
“482. Saving of inherent power of High Court-Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”
17. Such powers are to be exercised, sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself.
18. The Apex Court in the case of HMT Watches Ltd. v. M.A Abida reported in 2015 (3) Scale 832 was considering the petition under section 138 of the Negotiable Instruments act and held that the High Court should not have expressed its views on the disputed questions of facts of the petition under section 482 of the Code of Criminal Procedure. The Apex Court reiterated the parameters of the jurisdiction of the High Court in exercise of jurisdiction under section 482 of the Code of Criminal Procedure by referring to the decision of Suryalakshmi Cotton Mills Limited v. Rajvir Industries Limited reported in (2008) 13 SCC 678 by holding that a great deal of caution needs to be exercised by the Court and ordinarily the defence of the accused plausibly should not be taken into consideration for exercise of such jurisdiction. Relevant paragraph of the said judgment is reproduced hereunder:—
“[11] In Suryalakshmi Cotton Mills Limited v. Rajvir Industries Limited (2008) 13 SCC 678, this Court has made following observations explaining the parameters of jurisdiction of the High Court in exercising its jurisdiction under section 482 of the Code of Criminal Procedure:—
“17. The parameters of jurisdiction of the High Court in exercising its jurisdiction under section 482 of the Code of Criminal Procedure is now well settled. Although it is of wide amplitude, a great deal of caution is also required in its exercise. What is required is application of the well-known legal principles involved in the matter.
xxx xxx xxx
22. Ordinarily, a defence of an accused although appears to be plausible should not be taken into consideration for exercise of the said jurisdiction. Yet again, the High Court at that stage would not ordinarily enter into a disputed question of fact. It, however, does not mean that documents of unimpeachable character should not be taken into consideration at any cost for the purpose of finding out as to whether continuance of the criminal[pic] proceedings would amount to an abuse of process of court or that the complaint petition is. filed for causing mere harassment to the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal, namely, to force the accused to pay the amount due to the complainant immediately. The courts on the one hand should not encourage such a practice; but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable.”
19. The Court also referred to the decision of Rallis India Limited v. Poduru Vidya Bhushan reported in (2011) 13 SCC 88 to hold that the High Court should not interfere ordinarily while exercising the jurisdiction under section 482 of the Code of Criminal Procedure.
20. It is well settled principle that inherent jurisdiction of the Court needs to be exercised when no other remedy is available to the litigant and not where a specific remedy is provided by the statue. Further, the power being an extraordinary one, it has to be exercised sparingly. To prevent abuse of process of the court, the High Court, in exercise of its inherent powers under section 482 of the Code, could quash the proceedings, provided there would be justification for interference only when the complaint did not disclose any offence or was frivolous, vexatious or oppressive. As held by the Apex Court in the case of State of Bihar v. Murad Ali Khan reported in AIR 1989 SC 1, it is not for this Court to embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not.
21. This being a remedy not to be resorted to as an appeal or revisional jurisdiction, when the Court from the very reading of the complaint is of the opinion that the same is neither vexatious or malicious deserving any interference, no interference would be desirable.
22. Primary details revealed in the complaint had led this Court examine the papers of the investigation. The evidence so far collected prima facie reveal the involvement of the petitioner. This Court also could notice that it is a case where under the pretext of buying only a particular Plot No. 56 from the complainant and his family members, the power of attorney has been forged usurping nearly 10 other plots which value nearly 11 crores and odd by allegedly conniving with each other, and therefore, the payment of Rs. 42 lakhs by the cheques to the complainant in relation to one of the plots also would pale into insignificance. This, by no means, even at a prima facie level, can be said to be a civil dispute given a colour of criminality. It would be in the interest of both the sides for this Court to either, at this stage, not to make a roving inquiry or divulge anything which may affect the ongoing investigation. Suffice it to note that, the petition does not deserve to be entertained and the same stands rejected.
23. At this stage, learned advocate Mr. Bhargav Bhatt for the petitioner, made a request that no action be taken against the petitioner for the period of three weeks as during the pendency of this petition, though there was no explicit order passed by this Court, restrain was observed by the prosecution. Such request is not being acceded to.
Date: 31/08/2016
ORAL ORDER
24. This Court vide order dated 03.08.2 016 has dismissed the petition. By way of this Speaking to Minutes Note, it is urged that though the draft amendment has been tendered, it found no mention in the said order and an order of Criminal Misc. Application No. 13847 of 2015 also had been pressed into service for availing the expert's opinion, which also is not referred to. Moreover, as the Special Investigating Team (SIT) is ordinarily constituted in every district for examining land dispute and as no reference is found of the said SIT, therefore, Speaking to Minutes note.
25. In the beginning of the order, following lines be added, “The draft amendment is allowed”. With regard to the other two submissions made in relation to (i) reference to the Forensic Science Laboratory and (ii) SIT being by-passed, this Court in Paragraph 20 of the said Order, has already summarised that the main petition was being disposed of at the stage when the investigation was at a crucial stage and, therefore, further dilation of issue was not warranted and, therefore, no further discussion was found desirable and hence, except allowing draft amendment, no other change in the order is necessary.
26. The Speaking to Minutes Note stands disposed of accordingly. Necessary correction of the order dated 03.08.2016 be made. A fresh copy of the same shall be furnished to both the sides.