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The Indian Penal Code, 1860
Section 403 in The Indian Penal Code, 1860
Section 420 in The Indian Penal Code, 1860
Section 477 in The Indian Penal Code, 1860
Section 200 in The Indian Penal Code, 1860

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Gujarat High Court
Manharbhai Muljibhai Kakadia And ... vs Shaileshbhai Mohanbhai Patel And ... on 26 August, 2005
Author: C Buch
Bench: C Buch

JUDGMENT

C.K. Buch, J.

1. The following reasons are being rendered in view of order dated 05th August, 2005, passed by this Court, by which the above mentioned Criminal Misc. Application was dismissed.

2. By way of this oral judgment, as agreed by the counsel who have addressed the Court, this Criminal Misc. Application, initiated in reference to the Inquiry Case No. 26 of 2004 filed in the Court of ld.JMFC, Surat, is being disposed of because the Criminal Revision Application is the main proceeding and by filing Criminal Misc. Application, the orig. Accused of Inquiry Case had prayed that they should be joined as party respondents in the Criminal Revision Application moved by the orig.complainant of the Inquiry Case and the application should be heard on merit while dealing with Revision Application.

3. The above mentioned Revision Application is moved before this Court directly, though the same could have been filed in the Court of Sessions, having concurrent jurisdiction to deal with the Revision Application. Having considered the contentions raised in the memo of the Criminal Misc. Application as well as the Criminal Revision Application and earlier orders passed by this Court in reference to criminal proceedings initiated on the controversy of genuineness of certain documents and the dispute of an immovable property i.e. land, the Court is not inclined to direct the petitioner to approach the Sessions Court initially by moving Revision Application because this may add one more litigation and the counsel who have addressed the Court including the ld. APP for the State, have not raised this aspect before this Court.

4. The order dated 16th April, 2005, passed by the ld.JMFC, Surat, in Inquiry Case No. 26 of 2004 is an order approving 'C' summary report submitted by Mr. R.G.Jadeja-respondent No. 2-Police Inspector of Umra Police Station, in M-Case No. 12 of 2004, is assailed on various grounds and it is prayed that this Court should hold the impugned order as erroneous, illegal and invalid and if need be, this Court should direct Commissioner of Police, Surat City, to enter into further investigation in the complaint through one Police Officer, who is not below the rank of D.C.P. (Deputy Commissioner of Police) from the I.P.S. Cadre. It is submitted that the investigation has been kept incomplete and the Investigating Officer-opponent No. 2 has not even cared to peep into the real controversy and criminality emerging from record. The facts narrated in the complaint and the submission of 'C' summary report is mechanical. The report under challenge is in respect of one civil litigation pending qua the very property in the competent Civil Court at Surat. To resolve the controversy, it would be beneficial to have a bird eye view on the facts placed by the petitioner. As per the facts emerging from record, the orig.complainant filed a private complaint in the Court of Chief Judicial Magistrate, Surat, and the ld.Chief Judicial Magistrate, Surat, in exercise of powers vested with the Court, ordered to send the complaint to Police for investigation under Section 156(3) of the Code of Criminal Procedure, 1973. The complaint was registered as Inquiry Case No. 26 of 2004 and in turn, the Umra Police Station registered the case as M-Case No. 12 of 2004 and started investigation. After completion of investigation, the orig.respondent No. 2 submitted 'C' summary report concluding that the nature of dispute between the parties is nothing but a Civil dispute and no criminal offence as alleged in the complaint can be said to be made out. The complainant was heard by the ld.Chief Judicial Magistrate and the ld.Chief Judicial Magistrate accepting the report granted the said report as prayed for by the Investigating Officer. Before granting of 'C' summary report, written objections were placed before the ld.Chief Judicial Magistrate. According to the petitioner, ld.Chief Judicial Magistrate was asked to consider various documents including the orders passed by this Court in earlier litigations including Special Criminal Application Nos. 1009 of 2004 and 1361 of 2004.

5. It is the say of the petitioner that he owns collectively along with his father, brother, uncle and two cousin brothers a piece of land bearing Revenue Survey No. 10, City Survey Nos. 126 to 151, admeasuring about 4801.16 sq.mts. in the prime area of Taluka Choryasi, Surat City, on the river-side and the said parcel of land has very high market value. Mr. Manharlal Muljibhai Kakadiya-orig. Accused No. 1, is a welknown builder and developer in the Surat City and the accused No. 2 is his nephew and both of them have committed the alleged offences punishable under Sections 420, 467, 468, 471 and 120B of the Indian Penal Code. The allegation in the complaint made is that the petitioner-complainant came to know in the year 2004 that the accused No. 1-Mnaharlal Muljibhai Kakadia, in the capacity of a promoter and builder promoted one co-operative housing society namely Indoregency Co-operative Housing Society Ltd. in the capacity of the President of the the said proposed society and the accused No. 2 was made Secretary of the said proposed society; and both of them hatched a criminal conspiracy and forged agreement to sale containing signature of the orig. complainant and his other five relatives. It is further stated that even after knowing that the same is forged, they used it for getting the proposed society registered before the Registrar of Co-operative Societies. It is also alleged that as the document i.e. agreement to sale, is forged with ulterior motives, obviously, the complainant and the other co-owners of the land in question have not received the amount of alleged consideration, which was to the tune of Rs. 1.92 crores. It is submitted that as per the statutory requirement under the Gujarat Co-operative Societies' Act, a co-operative society is supposed to present its Registered Sale Deed or a registered agreement of the land in question because the proposed society is supposed to convince the concerned Registrar that the society has a definite right, title or interest in the same parcel of land i.e. in favour of promoters of the proposed society. It is alleged that even the original agreement to sale was also not produced before the concerned Registrar at Surat but a xerox copy of the same was tendered and with the help and in connivance of the officials/ employees of the office of the Registrar of Co-operative Societies, the accused got the Society registered and in turn, the society was granted all other necessary permission after getting the status of a registered co-operative society. It is alleged that certain forgeries have been made by the accused persons to obtain necessary permission for construction on the land in question. Two residential towers have been erected containing 50 flats each and price of each flat is not less than Rs. 35 lakhs. The controversy is on the forged agreement to sale and power of attorney; and on the strength of these two documents, the accused Nos. 1 and 2 got the land in question in their favour by Registered Sale Deed without paying any amount towards consideration whatsoever and the accused persons then claiming legal and valid title in their favour in the land in question. So obviously there is civil litigation between the original owners i.e. complainant and his relatives and the accused persons and the co-operative society claiming through the so-called promoters.

6. Mr. B.B. Naik, learned counsel appearing with Mr. A.J. Yagnik for the respondent No. 2, has taken me through the grounds assailing legality and validity of the order and has argued that material error has been committed in accepting 'C' summary report. The acceptance of 'C' summary report has an effect of discharge of the persons named 'accused' in a private complaint and it would make at the most accused liable for civil action for all time to come and the finding recorded by the ld.Chief Judicial Magistrate may cast some effect during the process of crystallization of the civil rights of the parties and resolving disputes between them. It is pointed out by Mr. B.B. Naik that in view of the earlier orders passed by this Court in two Special Criminal Applications and the language of the affidavits filed by the Investigating Officer in the said Special Criminal Applications and the contents thereof, the Investigating Officer would not have submitted 'C' summary report.

7. The backbone of the 'C' summary report submitted by the Investigating Officer and accepted by the learned Magistrate is that :

(i) Civil Suits are pending and by that right, title and interest dispute in respect of these two very documents now shall be crystallized and,

(ii) The original documents in question i.e. forged unregistered agreement to sale, a xerox copy of which was submitted to the Registrar of Co-operative Societies for getting the Indoregency Cooperative Housing Society registered and the doubtful power of attorney are not traceable and the Investigating Officer could not secure those documents and so it will be difficult for this Court to infer that these documents are forged.

7. According to Mr. B.B. Naik, learned counsel appearing with Mr. A.J. Yagnik for the respondent-accused, these two documents could have been secured from the accused persons and in turn from the office bearers of the Indoregency Co-operative Housing Society or at least one from the office of the Registrar of Co-operative Societies and failure in tendering these documents to Investigating Officer by the accused could have been considered as a relevant incriminating circumstance against the accused but the Investigating Officer with the reasons best known to him submitted 'C' summary report. The detailed arguments have not been considered in the background of law of cheating and conspiracy and thereby, grave error has been committed by the ld.Chief Judicial Magistrate.

8. The act of winning over some of the co-owners after commission of forgery ought to have been ignored by the Investigating Officer and it is argued that in view of the nature of allegations made in the complaint, the Investigating Officer ought to have gone into the crux of the grievance of the complainant and could have submitted that two important documents are not found to be genuine and on the strength of forged documents in connivance with the officials and employees of the office of the Registrar of Co-operative Societies, the Indoregency Co-operative Society obtained registration and in turn got the registered Sale Deed executed in their favour. According to Mr. B.B.Naik, ld.Chief Judicial Magistrate ought to have rejected the 'C' summary report. The act of placing reliance on earlier litigation is nothing but placing reliance on the irrelevant allegations made in the complaint. It is argued that after the offence in question was committed way back in the year 1996, developments would not go to the root of the offence and the offence remains distinct. Some development between the accused and some of the co-owners are not acceptable of throttling the grievance of the complainant.

9. The acceptance of 'C' summary report is nothing but a material jurisdictional error committed by the ld.Chief Judicial Magistrate because at more than one place it appears that the original document was required to be seized and the expert opinion on the genuineness of the signature/thumb impressions and handwriting was required to be obtained and that exercise was not done under one or the other pretext. Undisputedly the signatures or thumb impressions including handwriting of the persons who have allegedly signed the documents was not unavailable which could have been even obtained. Who purchased the stamp papers; why that document was not registered? etc. are the aspects which need detailed investigation. No serious attempt to compare the handwriting or signatures was made by the Investigating Officer and this aspect emerges from the plain reading of the report and, therefore, it is argued by Mr. B.B. Naik that the ld.Chief Judicial Magistrate ought to have directed the Investigating Officer to complete the investigation or could have issued process considering the incriminating conduct of the accused persons and other circumstances emerging from record including the facts stated by the parties in earlier as well as pending civil litigations. Mr. B.B. Naik has fairly accepted that according to me, the investigation is not complete and further investigation is required to be ordered and that could have been done by the ld.Chief Judicial Magistrate or the Investigating Officer or his successor even today. They can do further investigation and record a finding distinct than recorded by the officer who has submitted the 'C' summary report provided that he decides to turn down the 'C' summary report and acceptance of it by the ld.Chief Judicial Magistrate. The revisional Court has jurisdiction to disturb the finding, if the same is found perverse and/or based on material legal error committed in recording finding.

10. The accused have approached this Court on acceptance of 'C' summary report by the ld.Chief Judicial Magistrate which was submitted by the Investigating Officer, has crystallized their rights and the effect of the order is of discharge from all the charges and allegation made by the complainant was before reversing the finding whereby their rights have been crystallized by the ld.Chief Judicial Magistrate. They should be given adequate opportunity of being heard and the principles of natural justice should be observed and they have right to address this Court supporting the finding recorded by the ld.Chief Judicial Magistrate.

11. Mr. Yatin N. Oza, learned senior counsel as well as Mr. R.S. Sanjanwala, learned senior counsel appearing for the petitioner, have addressed this Court at two different steps so far as their say in the Criminal Misc. Application is concerned. Firstly, they were asked to convince the Court as to their locus and secondly, while their say objecting the say of Mr. B.B. Naik on the contentions which are raised in the Criminal Misc. Application. Over and above the oral submissions, with the reasons best known to the opponents of Criminal Misc. Application. They have submitted the written arguments. These arguments are nothing but the gist of oral submissions which are made before the Court. It is argued that the accused should be joined as party respondent in the Revision Application because there are serious allegations against one accused i.e. accused No. 1-Manharlal Muljibhai Kakadiya and nothing adverse should be permitted to be argued on the strength of the serious allegations made in the memo of the Revision Application, especially in paras:2.11 to 2.14. The intention of the complainant is to mislead this Court by placing different case than the case placed by him in the Court of Chief Judicial Magistrate and the respondents-accused, if are given opportunity, this aspect can be pointed out clearly. The contents of the original complaint are false and frivolous and on filing of 'C' summary report, their right stops for filing false case against such accused has been crystallized and such right is likely to be affected adversely in absentia of the accused, who are able to point out from the record prima facie that the competent Civil Court has recorded finding against the complainant and this shall have a direct bearing on the result of the Revision Application. The prima facie finding recorded before the Civil Court is that the complainant has no right, title or interest in the land in question and the intentions of the complainant are mala fide. It is alleged that the

petitioner-complainant is a habitual blackmailer and the complainant himself has manipulated record of Registrar of Cooperative Societies to initiate proceedings in the nature of a private complaint. The pleadings before the Civil Court when reveal that there are inter-se disputes between the family of the complainant i.e. his father and his brother one side and complainant and his family on the other, this finding of the ld.Chief Judicial Magistrate cannot be said to be perverse or illegal and when the petitioner is also trying to invoke inherent powers vested with the Court under Section 173(8) of the Code of Criminal Procedure, 1973, for obtaining direction as to further investigation, the accused should be given opportunity to address the Court.

12. One of the arguments advanced by Mr. Y.N. Oza, learned senior counsel appearing for the petitioner-orig.complainant, is that the ratio of the judgment dated 15th January, 2003, passed in the case of Habibbhai Vaszirbhai Momin Chaudhary v. State of Gujarat, in Criminal Revision Application No. 466 of 1997, squarely helps the applicant-orig. accused and this decision has a binding force. This Court, therefore, should accept the ratio propounded by the said decision, whereby this Court has observed that the right of the accused to address the Court can be said to have been crystallized. Referring to para:9 of the decision, in the case of Habibbhai (supra), it is argued that the say of the accused should be considered and only then the Revision Application should be decided on merit. It is alternatively argued by Mr. Y.N. Oza that if this Bench is not inclined to accept the view expressed by the co-ordinate Bench of this Court, then it would be in the fitness of things to refer the matter to the Larger Bench in view of the ratio of the decisions in the case of Dr. Vijay Laxmi Sadho v. Jagdish, and in the case of State of Bihar v.

Kalika Kuer Alias Kalika Singh and Ors., . Mr. Y.N. Oza has also placed reliance on three other decisions in the case of Bhagirath v. Kana Ram and Anr., reported in 2001 Cr.L.J. 122 (SC), in the case of Mayaben Arjunsinh Vasadia v. Arjunsinh Dhirajsinh Vasadia, reported in 1996(3) GLR 35, and in the case of State Bank of India v. Rajendra Kumar Singh and Ors., . This decision has been referred

to by this Court in the case of Habibbhai (supra).

13. It is true that the Single Judge of the High Court is bound by earlier decision of the Single Judge of that High Court. In the case of disagreement, the matter should be referred to the Larger Bench. Characterizing the earlier judgment as per incuriam on the ground of dissent is improper. This decision has been followed in two subsequent decisions i.e. State of Bihar (supra) and in the case of State of Punjab and Anr. v. Devans Modern Breweries Ltd. and Anr., . Impliedly, this argument that this

Court should not decide the Revision Application unless the applicant-accused is heard on merit. Of course, the say of the applicant is placed before the Court through the ld. APP appearing in the matter. Of course, the ld. APP appearing for the respondent-State, has submitted that the accused has no locus to address the Court at this stage and the real controversy is between the petitioner-complainant and the State so far as present Revision Application and the issues in question are concerned. It appears that one decision of this Court in the case of Panatar Arvindbhai v. State of Gujarat and Ors., reported in 1991(1) GLR 451, probably was not placed before the learned Single Judge in the Criminal Revision Application in the case of Habibbhai (supra). The decision in the case of Panatar Arvindbhai (supra) squarely covers the controversy at least between the applicant-accused and the present petitioner as to the point of locus standi of the accused to address the Court. I would like to quote relevant part of the said decision in the case of Panatar Arvindbhai (supra), which helps the respondent-accused, is as under :

1. This is a checkered history to an offence registered with 'A' Division Police Station, Jamnagar in its Crime Register No. 42 of 1986. As the Police did not initiate any investigation for a period of about eight months or so, he approached the learned Chief Judicial Magistrate on or about 20.4.1987 and obtained certain orders of investigation. Thereafter, the local Police of Jamnagar also initiated inquiry and at the end, they submitted report on 9.6.1987 and sought 'C' summary. The complainant-present petitioner objected to it and while hearing the report as to 'C' summary, the learned Magistrate allowed the proposed accused and the complainant also to be heard against which the petitioner filed Criminal Revision Application No. 115 of 197 in the Court of learned Sessions Judge, Jamnagar. The learned Sessions Judge agreed with the petitioner and over-rulled the decision of the learned Magistrate allowing the accused to make submission. There were about seven accused, who should strictly speaking be referred to suspects only, and two of them approached this Court by way of Criminal Revision Application No. 169 of 1988. That matter came to be decided on 22.7.1988 by Mr. Justice G.T. Nanavati confirming the order of the learned Sessions Judge.

XXX XXX XXX XXX

6.The views consistently expressed by this Court as well as by the Supreme Court about the hearing of the suspects at the stage of granting of 'C' summary or not is clearly to the effect that they have no locus standi.

7. In this background we turn to the submission made under Section 403 of the Code of Criminal Procedure, by learned Advocate Shri J.R. Nanavati. There again at first sight it might appear that party referred to in the said section could be other than one arrayed before the Court on either side, but when we ralise that the matter to be dealt with under Chapter 30 of the Code of Criminal Procedure wherein occurs Section 403 power is that of a Revision and it being the power exercised by the Court, a party may or may not be heard as the Court may decide and this alone would explain the inclusion of Section 403 in that Chapter.

8. Otherwise all the procedural laws have as its foundation the maxim Audi Alterem Partem and at all stages whereever the need be there are provision for issuance of notice and making sure that the party against whom the orders are being sought is heard. Therefore, there was no need of inclusion of Section 403 at the place where we find it and we can appreciate it only and only if bearing in mind the fact that it being a chapter dealing with revisional jurisdiction which is expressly privilege of the Court realising the oder of subordinate Court that there might be an occasion, the party need not be or may not be heard, and therefore, there is a specific provision in that behalf.

9. Once we appreciate the aforesaid section in this light of submissions made by learned Advocate Shri Nanavati pertaining to the aforesaid decision of the Gujarat High Court as well as that of the Supreme Court on hearing of the suspects at the stage of granting of 'C' summary, can also be understood because the same principle will apply whether the accused are being dealt with under Chapter 13 of 17 of the Code of Criminal Procedure, as the case may be, the principle will not alter and more so when we appreciate the inclusion of Section 403 of the Code of Criminal Procedure, it becomes quite clear that the principle on the contrary would be reinforced.

7. Thus in view of above, it will be difficult for this Court to say that the observations made by the learned Single Judge in the case of Habibbhai (supra) is the consistent view expressed by this Court or by the Apex Court. On the contrary, it emerges that the facts in the case of Habibbhai (supra) are a bit different and the law is to be applied in the background of set of facts available. In the cited decision in the case of Habibbhai (supra), the complainant Palaji Harji Devka, Taluka Development Officer, Sidhpur, had filed a police complaint for the offences punishable under Sections 408, 477, 420, 114 of the Indian Penal Code and after investigation instead of filing of the chargesheet against the accused, the police submitted 'B' summary report and the learned Magistrate issued a notice against the complainant to show cause as to why the 'B' summary report should not be granted as prayed for by the police in the report. The complainant obviously appeared and submitted his case in writing but ultimately the ld.JMFC accepted the report and granted 'B' summary as prayed for by the police. So it becomes crystalised that the complainant was either false or vexatious. The said order passed by the ld.JMFC was assailed by way of Criminal Revision Application under Sections 397 and 399 of the Code of Criminal Procedure, 1973 before the Court of Sessions. But in that Revision Application, the complainant did not join orig. accused as party respondent and the ld.Sessions Judge allowed the Revision Application and directed the learned Magistrate of the trial Court to treat the objections filed by the complainant in writing at Exh.4 as complaint and to take further action in the matter as per the procedure contained in Section 200 to 204 of the Code of Criminal Procedure, 1973. This order of ld.Sessions Judge was assailed by way of Revision Application before the High Court. In this decision, the police had prayed for 'B' summary and the effect would be that the accused are not guilty of any wring and the complaint, therefore, can be said to be a false and vexatious complaint. The Investigating Agency may ask even to prosecute the complainant, it would open a window for orig. accused to prosecute the complainant for initiating malicious prosecution even independently. In the present case, the Investigating Officer has never submitted that there is no dispute between the parties but the say of the petitioner is that on account of non-availability of certain documents and in view of pendency of Civil cases, the grievance of the complainant can ably be redressed by the competent Civil Court and the complaint is of Civil nature and so it is difficult for this Court to accept the say of Mr. Y.N. Oza, learned senior counsel, that this Bench has no go but to refer to the matter to the Larger Bench, if is not inclined to accept the ratio propounded in the case of Habibbhai (supra) squarely. On the contrary, the decision in the case of Habibbhai (supra) is distinguishable and the other decision of this Court which has also binding force on similar set of facts, can be considered while dealing with the proposition placed by the applicant.

8. Mr. B.B. Naik, learned counsel appearing for the petitioner-orig.complainant, has made a statement before the Court that the petitioner-orig.complainant is not relying or presenting any of the facts which are extraneous to the case placed in the FIR and he may be ignored. Therefore also, the say of the applicant-orig.accused No. 1 that he should be permitted to be joined as party respondent because there are certain serious allegations in the petition, is not required to be considered. The nature of relief prays for in the main petition and the main grounds of challenge does not reveal that the petition is materially different from the case put forth in the complaint. The Court is concerned with the legality and justifiability of the order under challenge and while exercising revisional jurisdiction, this Court is not supposed comment on the merit and evaluation of each detail given by the complainant. Whether the complaint is false or frivolous is to be decided by the competent forum because the Investigating Agency has not prayed for 'B' summary saying that the complaint is false. It is not even the say of the respondent-State that the say of the petitioner-orig.complainant is inconsistent. The pendency of civil proceedigns by itself would not be sufficient to propose that the dispute between the parties is absolutely of civil nature. Even the accused persons have successfully developed a rapo with one branch of the original owner of the land in question, would not make the grievance of the complainant of civil nature because it would depend on so many aspects.

9. In view of above reasons, the findings therefore, cannot be said to be in the nature of creating right in favour of accused/ suspects and hence, I do not find any merit in this Criminal Misc. Application and the same be treated as dismissed.