IMPORTANT POINT
Cheating and forgery – A bonafide criminal prosecution cannot be quashed at threshold.

Order (Oral)

This petition is filed under Section 482 of the Code of Criminal Procedure Code, 1973 (hereinafter referred to as “the Cr.P.C.”) for quashing and setting aside the FIR bearing C.R. No.I-16 of 2016 registered with Sathamba Police Station District-Arvalli for the offences punishable under Sections 419, 420, 465, 467, 468, 471 and 114 of the Indian Penal Code, 1860 (hereinafter referred to as “the Code”).

2. Heard learned advocate Mr. Rasesh H. Parikh with learned advocate Mr. Sagar Pandya for the applicants, learned advocate Mr. Prakash Pandya for respondent No.2 and learned APP Mr. Pranav Dhagat for respondent-State.

3. Rule. Learned advocates waive service of notice of Rule on behalf of the concerned respective respondents.

4. Considering the facts and circumstances of the case and with the consent of the learned advocates for the respective parties, the matter is taken up for final disposal forthwith.

5. The brief facts of the case are as under:-

5.1. The complainant has made allegations in the impugned FIR that land bearing old Block No.168 of Village Ajabpura, Taluka Bayad admeasuring about 3 Hector 47 Are 52 Meters and out of which, 2 Hector 85 Are 40 Meters have been purchased by the father and uncle of the respondent No.2 by a registered sale deed dated 07.04.1995. Remaining land remained with Patel Kodarbhai Jethabhai, Patel Balubhai Jethabhai and Patel Jashubhai Manibhai and from the remaining land, the land admeasuring 0 Hector 57 Are 67 Meters was sold by Patel Kodarbhai Jethabhai. The applicant No.1 was power of attorney holder of Patel Balubhai Jethabhai, who was the father of the applicant No.1 Patel Balubhai Jethabhai has passed away on 30.11.2003 and thereafter, a forged power of attorney was created on 29.03.2008 in the name of the deceased-Patel Balubhai Jethabhai. Further it is alleged that applicant No.2 has attested as a witness and applicant No.3 has purchased the land and in such a way, the applicants have committed an offence punishable under Indian Penal Code. Hence, FIR came to be registered.

6. Learned advocate for the applicants submitted that impugned FIR is nothing but an abuse of the process of law as before filing of the impugned FIR, complainant had already filed a complaint before the learned Judicial Magistrate First Class, Bayad being Inquiry Case No.5 of 2016 for the offences punishable under Sections 34, 36, 417, 420, 465, 467, 468, 471 and 120 (B) of the Code on 18.02.2016. It is further submitted that on the same day, the learned Magistrate ordered inquiry to be conducted under Section 202 of the Code. Thereafter, impugned FIR came to be filed on 22.05.2016 for the same offences, which are mentioned in the Inquiry Case No.5 of 2016. It is further submitted that allegations made in the complaint is purely of civil nature. Complainant has alleged that his portion of the land is shown in the sale deed, which is executed by the applicant Nos.1 and 2 in favour of the applicant No.3. It is further submitted that allegations made in the complaint do not attract the basic ingredients of Section 415. Therefore, no offence can be said to have been committed by the applicants under Section 420 of the Code. It is further submitted that similarly the impugned FIR does not disclose the commission of an offence under Section 463 of the Code and hence, applicants cannot be roped for the alleged offences punishable under Sections 465, 467 and 471.

6.1. It is further contended by the learned advocate for the applicants that complainant has no locus standi to file the complaint in question as the complainant is not the direct person who is affected by the sale transaction. It is further submitted that the purchaser of the land in question i.e. applicant No.3 has not raised any dispute or doubt about the measurement of the land in question. It is further submitted that measurement of the land in question is not the domain of the Criminal Court but that issue can only be resolved through Civil