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2017 Supreme(Guj) 653

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Sonia Gokani, J.
Manojbhai Parshottambhai Movaliya – Appellant
Vs.
State of Gujarat and Ors. – Respondents
Criminal Misc. Application (for Quashing & Set Aside Fir/Order) No. 12639 of 2014 and Criminal Misc. Application Nos. 12996, 12473, 12465, 13264, 13266 of 2014 and 13991 of 2016
Decided On : 24-03-2017

Advocates:
Cases Referred :
For the Appellant :R.S. Sanjanwala, Senior Counsel and Pravin Gondaliya, Advocate
For the Respondent: Ronak Raval, Addl. Public Prosecutor

Headnote:

Indian Penal Code, 1860 – Sections 406, 420, 465, 467, 468, 471, 114 and 120B – Code of Criminal Procedure, 1973 – Section 482 –applicants-original accused under section 482 of Code of Criminal Procedure, 1973, seeks to prevent abuse of process of law – Allegations made in FIR and the evidence collected in support thereof, even when taken on face value, would not prima facie constitute an offence and even uncontroverted allegations made in FIR do not disclose commission of offence – It is averred that where criminal proceedings are manifestly attended with mala fide or proceeding are maliciously instituted with an ulterior motive of wreaking vengeance or with an intention to extort money by pressurizing applicants (accused) or when on the face of it, the criminal proceedings are apparently used for harassment, it deserves quashment – Held, Court notices that the entire generation has vanished as not only Makanbhai and Sukhabhai have passed away, but some of their heirs too have also expired – Criminal prosecution cannot be allowed under the banner of "continuous offence" as alleged – Now to insist on those who have survived them and permitting such prosecution against the subsequent buyers would be nothing but to permit sheer abuse of process of law by giving a weapon of harassment and also of extracting money by means other than legal, misusing ostensibly legal process – First information report registered with DCB Police Station, and all the proceedings emanating therefrom, are quashed and set aside – Application Allowed (Paras 32, 33, 34)

JUDGMENT :

Sonia Gokani, J.

1. This group of petitions preferred by the applicants-original accused under section 482 of Code of Criminal Procedure, 1973, seeks to prevent the abuse of process of law. According to the applicants, allegations made in the FIR and the evidence collected in support thereof, even when taken on the face value, would not prima facie constitute an offence and even uncontroverted allegations made in the FIR do not disclose commission of offence. It is averred that where the criminal proceedings are manifestly attended with mala fide or the proceeding are maliciously instituted with an ulterior motive of wreaking vengeance or with an intention to extort money by pressurizing the applicants (accused) or when on the face of it, the criminal proceedings are apparently used for harassment, it deserves quashment. Last but not the least is the issue of inexplicable delay in lodging of FIR strenuously pressed into service. It is the say of applicants that the present proceedings are nothing, but pure and obvious abuse of process of law, therefore, the applicants are before this Court seeking quashment of the FIR.

2. Necessary facts, bereft of details, deserve to be mentioned at the outset.

2.1 The dispute is in relation to the old tenure agricultural land bearing Revenue Survey Nos. 17 and 18/01 paiki revised Survey Nos. 56/1 and 56/2 and also the Plot No. 45, Final plot No. 52 in the Town Planning Scheme No. 3, admeasuring total area of 6492 sq.mtrs. situated at village Rundh, Taluka Choryasi, District Surat (to be referred to hereinafter as "the said land").

2.2 Admittedly, Kanjibhai Keshabhai-original owner of the land in question was the real brother of Govindbhai Keshbhai-grandfather of the complainant of first information report in question being I-C.R. No. 35 of 2014 registered on August 02, 2014 with DCB Police Station, Surat, for the offences punishable under sections 406, 420, 465, 467, 468, 471, 114 and 120B of the Indian Penal Code. As emerges from the record Shri Kanjibhai Keshabhai was the owner of the land in question, who died on July 06, 1954. His wife Jankhuben expired in the year 1965. The brother of Kanjibhai, late Shri Govindbhai passed away before him in the year 1947. Govindbhai left behind him four children, viz. Sukhabhai, Makanbhai, Ratanjibhai and Sonalben. Kanjibhai and Jankhuben expired childless and therefore, the legal heirs of Govindbhai Keshubhai became the owners of said properties. Later on, the lands in question were mutated in the names of Naniben who was the wife of Sukhabhai and Makanbhai only. Sukhabhai had passed away on May 12, 1972. Their brother Ratanjibhai was deprived of his share by other two heirs as Sonalben had died early. Complainant is the daughter of Ratanjibhai who died on January 24, 1979. She is aggrieved by the fraud played upon her deceased father and his branch of heirs.

2.3 The dispute herein essentially concerns three branches of heirs as one branch of heirs has been left out in a pedigree presented to the revenue authorities, at the time of mutating an entry in the revenue records in the year 1982, i.e. on February 15, 1982. Such revenue entry, being Entry No. 479 of 1982, has been mutated whereby 1/3rd share of Ratanji Govindbhai, father of the complainant, is averred to have been marred by the action of other two branches of heirs of Govindbhai i.e., (i) Makanbhai Govindbhai and (ii) Naniben Sukhabhai, widow of late Sukhabhai Govindbhai.

2.4 Revenue entry, thus, was mutated, being entry No. 479 of 1982, giving effect to the pedigree presented by Makanbhai and heirs of Sukhabhai on February 15, 1982. The said entry was not challenged by the heirs of Shri Ratanji till the year 2007.

2.5 On 17th March, 1990, heirs of Makanbhai and Naniben Sukhabhai had jointly executed a power of attorney in favour of co-accused-Anil Shashikant Pastagiya, who is not before this Court.

2.6 In the year 1991, nine sale deeds were executed by Mr. Anil Shashikant Pastagiya in favo





















































































































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