IMPORTANT POINT
Hand writing expert is not a conclusive evidence – Reliance on hand writing expert report to draw inference of criminality would be weak piece of evidence when parties can disprove hand writing expert opinion.

ORDER (ORAL)

Both the petitions arise out of the same FIR where petitioners have prayed for quashing of the FIR against them. The matter being on common facts and with the same relief, is dealt with together.

1.1 The petitioner of Special Criminal Application No. 3284 of 2016 contends himself to be a bonafide purchaser of the land in question; while the petitioner of Special Criminal Application No. 3385 of 2016 states that he is the power of attorney holder of Somabhai Sakrabhai Patel which was executed on 18.04.1988.

1.2 The impugned FIR is registered on 17.03.2016 as C.R. No. I – 41 of 2016 with Nikol Police Station for the offences punishable under Sections 419, 420, 465, 467, 468, 471, 474, 120(B) of the Indian Penal Code. Both the petitioners are the accused in the impugned FIR. The complainant is the son of Somabhai Sakrabhai, who alleges that Survey No.460 and Survey No.462/1 of Nikol Village was sold away by the said power of attorney on the basis of forged signature of his father on the power of attorney. It is also alleged that Survey No. 450/4 which includes well and a room was sold away by the said power of attorney, and on the basis of forged signature, false documents have been created, and Survey No.460 had been sold to accused No.2 – petitioner of Special Criminal Application No. 3284 of 2016 - Nitinbhai Purshottambhai Prajapati and his father Purshottambhai S. Prajapati. The petitioner contends that the FIR is false, frivolous and is filed with an ulterior motive of causing harassment to the petitioner; is not legally sustainable and it amounts to abuse of the process of law. The complainant has suppressed the material facts before the Investigating Agency regarding various civil litigations which were pending between the parties before the Civil Court and the FIR is filed after a delay of 28 long years and the delay has not been explained.

2. Mr. Yogesh S. Lakhani, learned Senior Advocate alongwith Mr. Dholakia, learned advocate for the petitioner submitted that Sakrabhai Sankarbhai Patel who was the original owner of agricultural lands bearing Survey No. 460, admeasuring 4 Acre 5 Guntha as well as half share in Well and Room situated in Survey No.450/4 and Survey No.462/1 admeasuring 1 Acre and 38 Gunthas situated at Nikol Village had passed away, leaving three sons namely, Ishwarbhai, Ramanbhai and Somabhai and four daughters namely Dahiben, Maniben, Kamlaben and Shantaben, out of whom Shantaben died on 22.05.1984 and Dahiben expired on 27.09.1991. There was a family partition and the land bearing Survey No. 462/1 as well as half of the share situated in Survey No. 450/4 had gone into the share of Somabhai; whereas the land bearing Survey No. 460 came in the hands of Ishwarbhai and Ramanbhai. Ishwarbhai died on 27.12.1968 and Somabhai passed away on 16.4.2000.

2.1 Mr. Lakhani, learned Senior Advocate for the petitioner submitted that Somabhai Sakrabhai Patel had sold his share of land vide registered Sale Deed No. 6882/1988 for a consideration of Rs.39,000/- to Purshottambhai Shankarlal Prajapati. Mr. Lakhani, learned Senior Advocate for the petitioner submitted that the signature on that sale deed before the Sub-Registrar is not disputed even during the life time of Somabhai Sakrabhai. He submitted that, out of total consideration of Rs.39,000/-, the bank account is credited to Rs.24,000/- which was confirmed by the bank, and rest of the amount was paid in cash.

2.2 Mr. Lakhani, learned Senior Advocate for the petitioner submitted that irrevocable general power of attorney came to be executed by Somabhai Sakrabhai in favour of Rameshbhai Dahyabhai Patel (petitioner of Special Criminal Application No. 3385 of 2016) on the very same day i.e. 18.04.1988 the date on which the Sale Deed No. 6882/1988 was registered and the said power of attorney was executed before the Executive Magistrate.

2.3 Mr. Lakhani, learned Senior Advocate for the petitioner submitted that the power of attorney was executed in f