2017 Supreme(Guj) 543

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
B.N. Karia, J.
Kairunben Jamaluddin Kadri and Ors. – Appellants
Vs.
State of Gujarat and Ors. – Respondents
Criminal Misc. Application (for Quashing & Set Aside FIR/Order) Nos. 285 of 2014 and 10896 of 2013
Decided On : 10-03-2017

Headnote:

Indian Penal Code Sections 406, 420, 465, 467, 468, 471, 474 -Petitioners-accused for quashing and setting aside the complaint, being M. Case No. 1/2013 registered with Police Station, for the offence punishable and all other consequential proceedings arising therefrom, qua the present petitioners. The facts leading to filing of the present petitions . accused were having land at village, being survey No. 74. Out of that land, the accused No. 3, himself and being a power of attorney holder of remaining accused, decided to sale the land admeasuring 42-16, located on the western side of such land to the complainant for a consideration of Rs. 2,00,000/- and after receiving Rs. 1,00,000/-, an agreement to sale was made on a non judicial stamp paper of Rs. 50/- and it was notarized before the Notary Public at Sr. No. 401 and possession thereof was handed over to the complainant. The facts leading to filing of the present petitions are as That, the accused were having land at village Panakava, being survey No. 74. Out of that land, the accused No. 3, himself and being a power of attorney holder of remaining accused, decided to sale the land admeasuring 42-16, located on the western side of such land to the complainant for a consideration of Rs. 2,00,000/- and after receiving Rs. 1,00,000/-, an agreement to sale was made on a non judicial stamp paper of Rs. 50/- and it was notarized before the Notary Public at Sr. No. 401 and possession thereof was handed over to the complainant. Thereafter, an agreement was made to sale a piece of land admeasuring 40.00, located on the middle part of the said land for a sale consideration of Rs. 1,80,000/- to the father of the complainant. Out of that amount, after receiving a sum of Rs. 80,000/-, an agreement to sale was executed on a stamp paper of Rs. 50/- before the Notary Public at Sr. No. 402 and possession thereof was handed over to the brother of the complainant. It is alleged in the complaint that the complainant was ready and willing to get executed the sale deed, however, the accused persons were not doing so and were also trying to sale the said land to someone else, and therefore, the complainant filed a Regular Civil Suit with an injunction application before the court of learned Civil Judge, but later on, it was compromised between the accused persons and the complainant, and therefore, the Court below passed a consent decree. Nevertheless, to the shock and surprise of the complainant, the accused persons failed to execute sale deed in favour of the complainant, as per the order of the concerned Court, and on the contrary, got entries mutated on their names and in posted in their separate accounts also. When the complainant asked the accused to execute sale deed in their favour, they suddenly got excited on the complainant and told him that you may do anything, but we will not execute this land in your favour and issued threats that they shall sale such land to the headstrong persons and therefore -Held application to be supported by an affidavit. Power under section 156 (3) Cr.P.C. cannot be invoked by litigant at his own whim to harass others. It can be invoked only by a principled and really aggrieved citizen approaching the Court with clean hands. This view is expressed by the Apex Court in the case reported in 2015(6) SCC-287.It is not material for this Court to consider the arguments of learned advocate appearing for the respondent No. 2 that same land was sold by the petitioners to third party, later on, as it is not a disputed fact involved in the instance case. In such facts and circumstances, M. Case No. 1/2013 filed by the respondent No. 2 before the court of learned JMFC, would not be maintainable. Learned Magistrate concerned has committed a grave error by entertaining the said case and wrongly took cognizance by passing order. In view of the aforesaid facts, order passed by the learned JMFC in M. Case No. 1/2013 deserves to be quashed and is accordingly quashed and set-aside with all consequential proceedings, qua the petitioners. Criminal Misc. Application No. 285/2014 and Criminal Misc. Application No. 10896/2013 are hereby allowed, qua the petitioners. Rule nisi issued in each case is made absolute to the aforestated extent. However, there shall be no order as to costs -Appeal is Allowed.