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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
VAIBHAVI D. NANAVATI, J.
Nareshbhai Maheshkumar Khushlani - Applicant
Versus
State of Gujarat & Others - Respondents
R/Criminal Misc. Application No. 4950 of 2017
Decided On : 11-10-2022
Forgery - Land Dispute - Displaced Persons (Compensation and Rehabilitation) Act, 1954 - IPC Sections 406, 420, 467, 468, 471, 120(B) - [SUMMARY OF ACTS AND SECTIONS REFERENCED: Displaced Persons (Compensation and Rehabilitation) Act, 1954 - IPC Sections 406, 420, 467, 468, 471, 120(B)] - The court discussed the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and various sections of the Indian Penal Code, including sections 406, 420, 467, 468, 471, and 120(B). The court emphasized the elements of forgery, fraudulent acts, and cheating under the IPC and their applicability to the case. The judgment highlighted the distinction between executing a sale deed claiming ownership and executing a sale deed fraudulently, and the essential ingredients of the offence of cheating under section 420 IPC. The court also referred to the legal principles related to fraud, deceit, and injury, and the specific fraudulent acts that constitute offences under the Penal Code.
Fact of the Case:
The applicant was arraigned as accused in a case involving a land dispute. The complainant alleged that the land in question, allotted under the Displaced Persons (Compensation and Rehabilitation) Act, 1954, was sold fraudulently. The applicant, a witness to the sale deed, sought to quash the FIR and charge-sheet against him.
Finding of the Court:
The court found that the applicant's role was limited to being a witness in the sale deed, and no specific allegations or role were attributed to the applicant in the FIR or charge-sheet. Considering the documents, submissions, and legal position, the court exercised its jurisdiction under Section 482 of the Code of Criminal Procedure and quashed the FIR and related proceedings against the applicant.
Issues: The issues involved the alleged fraudulent sale of government land, the role of the applicant as a witness, and the applicability of forgery and cheating provisions under the IPC.
Ratio Decidendi: The court's decision was based on the limited role of the applicant as a witness, the absence of specific allegations against the applicant, and the legal principles related to forgery, cheating, and fraudulent acts under the IPC.
Final Decision: The court allowed the application, quashed the FIR, and terminated all proceedings arising from the impugned FIR and charge-sheet against the applicant.
The role of a witness in a sale deed primarily involves identifying and attesting to the execution of the document. A witness is expected to observe the signing of the sale deed and verify the identities of the parties involved, ensuring that the signatures are genuine and that the document is executed voluntarily. The witness's function is to confirm that the sale deed was signed in their presence and that the signatories are known to them or have been properly identified, thereby providing a layer of authenticity and credibility to the transaction (!) .
Importantly, a witness in a sale deed is generally not responsible for verifying the legal ownership of the property or the accuracy of the representations made therein. Their role does not extend to ascertaining whether the sale is lawful or whether the person executing the deed has the authority to do so. The witness's obligation is limited to witnessing the signing process and possibly signing the document to attest to this (!) .
Furthermore, the legal position clarifies that a witness's involvement does not imply any knowledge or verification of the underlying title or ownership rights. The witness's function is procedural, and they are not required to ensure that the property being sold is legitimately owned or that the sale is free from fraud. Their role is to provide an impartial attestation that the document was executed by the parties in their presence, which can be used as evidence of proper execution but does not extend to assessing the validity of the transaction itself (!) .
In summary, the role of a witness in a sale deed is to observe and attest to the signing of the document, confirm the identities of the parties, and ensure that the signing was voluntary and in their presence. They are not responsible for verifying ownership rights or the legality of the sale, and their involvement does not constitute an endorsement of the transaction's validity beyond witnessing its execution.
ORDER :
1. By way of the present application, the applicant herein has prayed for the following reliefs :
B. Your Lordships may be pleased to quash and set aside the impugned FIR bearing I-C.R. No. 30 of 2016 lodged before the Sardarnagar Police Station and also be pleased to quash and set aside the charge-sheet filed in respect of the said FIR being C.C. No. 597 of 2016 at Annexure-A and Annexure-B respectively.
C. Pending hearing and final disposal of this petition, Your Lordships may be pleased to stay the further proceedings of FIR bearing I-C.R. No. 30 of 2016 lodged before the Sardarnagar Police Station and the charge-sheet filed in respect of the said FIR being C.C. No. 597 of 2016 at Annexure-A and Annexure-B respectively.
D. Such other and further relief or relieves as may be deem fit, just and proper, in the facts and circumstances of the case.”
2. Mr. Desai, learned counsel appearing for the applicant submitted that it is the case of the complainant that Plot No. 409 being City Survey No. 9883 admeasuring 161.61 sq.mtrs. situated at Sardarnagar, Ahmedabad was allotted to refugee, who had come from Pakistan under the Displaced Persons (Compensation and Rehabilitation) Act, 1954. It is also the case of the complainant that, allottee of the aforesaid land – Rajesh Shreechand Lalvani executed power of attorney and sale deed on 06.08.2005 on a stamp papers of Rs.100/- and Rs.50/- respectively, which were notarized, whereby, Parshottam Dhanomal Harwani purchased the aforesaid plot by paying sale consideration of Rs.70,000/-.
3. Mr. Desai, learned counsel submitted that, it is also the case of the complainant that since the original allottee had not paid the purchase price, the land in question was resumed by the State Government, but actually the possession was not handed over by the original allottee. The land in question thereafter was allotted by the State Government to one Gopichand Harpaldas Jivnani. It is the case of the complainant that, thereafter, the said Gopichand Harpaldas Jivnani executed a sale deed in favour of one Nanubhai Raghubhai Bharwad on 16.07.2012, which came to be registered in the office of the Sub Registrar and thereby the land in question is sold by Gopichand Harpaldas Jivnani to Nanubhai Raghubhai Bharwad.
4. Mr. Desai, learned counsel submitted that, it is also the case of the complainant that the alleged land in question is a government land which could not have been sold by Gopichand Harpaldas Jivnani to Nanubhai Raghubhai Bharwad. Mr. Desai, learned counsel submitted that the applicant herein has signed only as a witness in the said sale deed dated 16.07.2012. Mr. Desai, learned counsel submitted that the applicant herein has only identified the executors of the sale deed i.e. the purchasers and the sellers and it is not even the case of the complainant that the signatures are forged either by the purchasers or the sellers.
5. Mr. Desai, learned counsel submitted that no offence could have been said to be committed by the present applicant and on perusal of the entire charge-sheet, no offence is made out against the applicant herein. The applicant herein being a witness is not required to verify or to know whether the person who has executed the sale deed is the real owner of the land in question. Mr. Desai, learned counsel submitted that the applicant herein was not named in the F.I.R., however, the applicant herein has been arraigned as accused no.5 in the charge-sheet being No. 66/2016 dated 02.05.2016 for the alleged charges under Sections 406, 420, 467, 468, 471 and 120(B) of the Indian Penal Code.
6. In view of above, the present applicant is constrained to approach this Court by filing the present Application.
7. Ms. Maithili D. Mehta, learned APP has produced on record the report dated 11.10.2022, the same is taken on Record. Ms. Mehta, relying on the report submitted that the applicant herein is only a witness to the sale
The central legal point established in the judgment is the distinction between executing a sale deed claiming ownership and executing a sale deed fraudulently, and the essential ingredients of the of....
The central legal point established in the judgment is that the allegations of forgery, cheating, and threatening must satisfy the essential elements of the offenses under the Indian Penal Code. The ....
There must be a prima facie case for a cognizance order; if facts only reveal a civil dispute, the criminal proceedings cannot proceed.
The essential ingredients of the offence of cheating must be met for a criminal proceeding to be sustained, and the distinction between executing a sale deed claiming the property as one's own and ex....
The absence of specific allegations of deception and intent to defraud against a party in criminal proceedings can lead to the quashing of charges under the Indian Penal Code.
The validity of a registered sale deed is presumed and the burden of proving its invalidity due to fraud lies on the challengers.
The court ruled that allegations of cheating under Section 420 IPC require evidence of fraudulent intent at the time of transaction, which was lacking, necessitating a quash of criminal proceedings.
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