1. Rule. Learned Additional Public Prosecutor waives service of rule.

2. The order dated 28.09.2018 rejecting the petitioner’s application for discharge from the offences punishable under Sections 467, 468, 471 and 114 of Indian Penal Code (for short, “the IPC”) registered as IC. R. No.238 of 2013 with Kalol Taluka Police Station, which culminated into Criminal Case No.3291 of 2014, is sought to be assailed.

3. On consideration of the rival contentions, undisputedly, one Dhuliben Somaji Thakor had executed a Power of Attorney on 05.08.1994 for selling the land in question; in pursuance thereto, a sale deed dated 30.09.1996 came to be executed by the Power of Attorney favouring the petitioner, which fact is not under challenge in the criminal case.

4. Before the execution of the sale deed, the new tenure land was converted into old tenure land on 10.09.1996; a sum of Rs.3,66,000/- was deposited by the petitioner in the account of said Dhuliben, which fact again is not in dispute.

5. Pertinently, neither the Power of Attorney nor the signature or thumb impression therein or the sale deed are in dispute. The petitioner, therefore, on the basis of the sale deed claims to have acquired the title on the property in question. However, it was discovered that Dhuliben herself had executed a sale deed transferring the very piece of land on 12.04.1996 to one Dineshbhai Muljibhai; thus, the question arose about the title of the two purchasers in respect of the land in question.

6. It is, however, required to be noted that new tenure land is not transferable under the law and on 12.04.1996 the said land held the character of new tenure and according to learned Senior Advocate for the petitioner, it could not have been conveyed to Dineshbhai Muljibhai Patel. This Court, however, would not delve upon the said issue as it is not directly concerned with the case herein.

7. It appears that thereafter necessary revenue proceedings ensued before the Mamlatdar; during such proceedings, one Vahjibhai Maljibhai Rabari allegedly prepared one notarized declaration with the signature / thumb impression of Dhuliben, validating the sale deed executed in favour of the petitioner. The revenue proceedings are pending with the Special Secretary, Revenue Department.

8. As would appear from further discussion in this order, the said document is the reason for the criminal proceedings against the petitioner and said Vahjibhai. The original of said document was also found from the possession of Vahjibhai; however, the copy thereof was allegedly produced by the petitioner before the Mamlatdar.

9. After about 16 years of the death of Dhuliben, her two nieces, one grand-niece and a grand-nephew instituted Special Civil Suit No.51 of 2012, the plaint whereof, eventually, came to be rejected on 15.11.2018 upon application under Order VII Rule 11, which was filed on 31.07.2012 by the petitioner herein. It is the case of the petitioner that sensing trouble in the suit, current criminal case is filed by one Kaliben Nathaji Danaji, one of the plaintiffs, on 31.12.2012 accusing the petitioner for the offences punishable u/s.467, 468, 471 and 114 of IPC in relation to the above mentioned declaration.

10. Learned Senior Advocate for the petitioner has also pointed out that one of the witnesses H.K. Gandhi has confirmed the fact that Vahjibhai got the said declaration notarized with him. It is submitted that at the time of notarization, the petitioner was not present with the Notary nor any thumb impression or signature appears on the document.

11. The aforesaid background of the case represents the complex issues. Question herein is what could be the consideration for the Court for dealing the case u/s.239 and 240 of Cr.P.C.. Sections 239 and 240 of Cr.P.C. are relevant for the decision of this Revision Application, which read thus;

“239.When accused shall be discharged.If, upon considering the police report and the documents sent with it under section 173 and making such ex