- (1.)Both the petitions arise out of the same FIR where petitioners have prayed for quashing of the FIR against them. The matter being on common facts and with the same relief, is dealt with together.
1.1 The petitioner of Special Criminal Application No. 3284 of 2016 contends himself to be a bonafide purchaser of the land in question; while the petitioner of Special Criminal Application No. 3385 of 2016 states that he is the power of attorney holder of Somabhai Sakrabhai Patel which was executed on 18/4/1988.

1.2 The impugned FIR is registered on 17/3/2016 as C.R. No. I - 41 of 2016 with Nikol Police Station for the offences punishable under Ss. 419, 420, 465, 467, 468, 471, 474, 120(B) of the Indian Penal Code . Both the petitioners are the accused in the impugned FIR. The complainant is the son of Somabhai Sakrabhai, who alleges that Survey No.460 and Survey No.462/1 of Nikol Village was sold away by the said power of attorney on the basis of forged signature of his father on the power of attorney. It is also alleged that Survey No. 450/4 which includes well and a room was sold away by the said power of attorney, and on the basis of forged signature, false documents have been created, and Survey No.460 had been sold to accused No.2 - petitioner of Special Criminal Application No. 3284 of 2016 - Nitinbhai Purshottambhai Prajapati and his father Purshottambhai S. Prajapati. The petitioner contends that the FIR is false, frivolous and is filed with an ulterior motive of causing harassment to the petitioner; is not legally sustainable and it amounts to abuse of the process of law. The complainant has suppressed the material facts before the Investigating Agency regarding various civil litigations which were pending between the parties before the Civil Court and the FIR is filed after a delay of 28 long years and the delay has not been explained.

(2.)Mr. Yogesh S. Lakhani, learned Senior Advocate alongwith Mr. Dholakia, learned advocate for the petitioner submitted that Sakrabhai Sankarbhai Patel who was the original owner of agricultural lands bearing Survey No. 460, ad- measuring 4 Acre 5 Guntha as well as half share in Well and Room situated in Survey No.450/4 and Survey No.462/1 ad- measuring 1 Acre and 38 Gunthas situated at Nikol Village had passed away, leaving three sons namely, Ishwarbhai, Ramanbhai and Somabhai and four daughters namely Dahiben, Maniben, Kamlaben and Shantaben, out of whom Shantaben died on 22/5/1984 and Dahiben expired on 27/9/1991. There was a family partition and the land bearing Survey No. 462/1 as well as half of the share situated in Survey No. 450/4 had gone into the share of Somabhai; whereas the land bearing Survey No. 460 came in the hands of Ishwarbhai and Ramanbhai. Ishwarbhai died on 27/12/1968 and Somabhai passed away on 16/4/2000.
2.1 Mr. Lakhani, learned Senior Advocate for the petitioner submitted that Somabhai Sakrabhai Patel had sold his share of land vide registered Sale Deed No. 6882/1988 for a consideration of Rs.39,000.00 to Purshottambhai Shankarlal Prajapati. Mr. Lakhani, learned Senior Advocate for the petitioner submitted that the signature on that sale deed before the Sub-Registrar is not disputed even during the life time of Somabhai Sakrabhai. He submitted that, out of total consideration of Rs.39,000.00, the bank account is credited to Rs.24,000.00 which was confirmed by the bank, and rest of the amount was paid in cash.

2.2 Mr. Lakhani, learned Senior Advocate for the petitioner submitted that irrevocable general power of attorney came to be executed by Somabhai Sakrabhai in favour of Rameshbhai Dahyabhai Patel (petitioner of Special Criminal Application No. 3385 of 2016) on the very same day i.e. 18/4/1988 the date on which the Sale Deed No. 6882/1988 was registered and the said power of attorney was executed before the Executive Magistrate.

2.3 Mr. Lakhani, learned Senior Advocate for the petitioner submitted that the power of attorney was executed in favour of Rameshbhai Dahyabhai Patel only to safeguard the interest of Somabhai Sakrabhai in case of any exigency as Somabhai had already sold off his land. Learned Senior Advocate Mr. Lakhani submitted that Somabhai during his life time had never disputed the fact of family partition and even the property which has gone into the share of Ishwarbhai and Ramanbhai is not disputed. Mr. Lakhani, learned Senior Advocate for the petitioner submitted that the heirs of Ishwarbhai and Ramanbhai had sold their share of land by registered sale deed No.21604/1993 dtd. 29/9/1993 for a consideration of Rs.1,65,000.00 to Purshottambhai Shankarlal Prajapati and Nitin Purshottambhai Prajapati (petitioner of Special Criminal Application No. 3284 of 2016) and stated that to avoid any technical issue the signature of power of attorney was taken on the said document. Mr. Lakhani, learned Senior Advocate also submitted that a confirmation deed No. 21605/1993 was also executed on 29/11/1993 by the co-owners and Rameshbhai Dahyabhai in his capacity as the power of attorney holder of Somabhai Sakrabhai confirming the earlier registered sale deed dtd. 18/4/1988.

2.4 Mr. Lakhani, learned Senior Advocate for the petitioner submitted that the heirs of Shantaben Sakrabhai and Maniben Sakrabhai had filed RTS Case No. 2 of 1999 and 3 of 1999 in relation to the land bearing Survey No. 460 wherein Somabhai Sakrabhai was made defendant who had filed his appearance through his advocate, and therefore, to this very fact, Mr. Lakhani, learned Senior Advocate submitted that there was no such issue of forgery in the power of attorney nor there would have been any dispute about the sale deed and the confirmation deed of 1993. Mr. Lakhani, learned Senior Advocate stated that the land of Survey No. 460 was sold by Somabhai, and therefore, there should not be any grievance by the complainant who is the son of Somabhai. Mr. Lakhani, learned Senior Advocate for the petitioner submitted that heirs of Ishwarbhai and Ramanbhai had filed Regular Civil Suit No. 787 of 2005 before the Civil Court at Ahmedabad (Rural) challenging the sale deed for Survey No. 462/1 and it is stated that the complainant Chetanbhai Somabhai Patel was a party to the suit, inspite of that fact after a long silence the impugned FIR has been filed.

2.5 Mr. Lakhani, learned Senior Advocate for the petitioner submitted that RTS Appeal No. 174 of 2008 was preferred by the heirs of Somabhai Sakrabhai including the complainant challenging the revenue entry towards the sale deed of Survey No. 462/1 which was rejected on 18/3/2011, therefore too contended, that the very allegation of forgery would not find any foot and should be considered as false. The Revision Application No. 96 of 2011 against the order passed in RTS Appeal no. 174 of 2008 was also rejected on 31/3/2013.

2.6 Mr. Lakhani, learned Senior Advocate for the petitioner further submitted that the heirs of Kamlaben Sakrabhai had preferred RTS Appeal No. 490 of 2011 and 491 of 2011 challenging the inheritance entry in the year 1970 for Survey No. 460 and inheritance entry mutated in the year 1989 for Survey No. 462/1, which came to be rejected on 30/10/2012. As against the said, Revision Application No. 20 and 21 of 2013 was preferred which too was rejected vide order dtd. 12/11/2013. The complainant had also addressed a written complaint to Karanj Police Station on 18/5/2013 and thereafter had preferred RTS Appeal No. 107 of 2013 challenging the mutation entry with regard to Sale Deed No. 21604 of 1993 for Survey No. 460 which came to be dismissed on 27/2/2015 and the revision preferred against that order was rejected on 18/1/2017 being the proceedings as Revision Application No. 454 of 2015.

2.7 Mr. Lakhani, learned Senior Advocate for the petitioner submitted that Regular Civil Suit No. 357 of 2013 preferred by the complainant Chetanbhai Somabhai Patel of this impugned FIR before the Civil Court, Ahmedabad (Rural), challenging the Sale Deed No. 21604 of 1993 was dismissed on 31/7/2017 against which Civil Misc. Appeal was preferred by him which was also rejected vide order dtd. 16/1/2018. As against the same, Appeal from Order No.200 of 2017 and SCA No. 4387 of 2018 has been preferred which is pending adjudication before this Court.

2.8 Mr. Lakhani, learned Senior Advocate for the petitioner stated that the complaint moved before the Karanj Police Station on 18/5/2013 was withdrawn by the respondent No.2- complainant of the impugned FIR; and a closure report dtd. 27/7/2013 was filed by Odhav Police Station, Ahmedabad, in connection with the complaint dtd. 30/1/2013.

2.9 Mr. Lakhani, learned Senior Advocate for the petitioner submitted that Special Criminal Application No. 4967 of 2015 was moved by the respondent No.2 suppressing the status of the earlier complaint and submitted that the closure report of complaint of Odhav Police Station was not produced before this Court, and therefore, it can be considered that the respondent No.2 has misguided the court. Learned Senior Advocate Mr. Lakhani, however, contended that on the order of this court, the impugned FIR came to be registered and in connection with the FIR filed, both the petitioners were arrested by the Investigating Officer and they were released on bail by the order of Sessions Court. To the chargesheet on 27/4/2016, Mr. Lakhani, learned Senior Advocate submits that while moving the present petition the petitioners were not in knowledge of filing of the chargesheet, therefore draft amendment was moved which came to be allowed on 28/8/2017 and accordingly necessary amendment was carried out.

2.10 Learned Senior Advocate Mr. Lakhani submitted that while considering the documents on record, there would not be any case of forgery; the son of Somabhai Sakrabhai after a long period of 28 years has disputed the signature of his father on the power of attorney. He submitted that the father of the complainant during his life time from the date of execution of sale deed in the year 1988 till his death in the year 2000 had never disputed any of the document rather the father of the complainant was party present in the revenue proceedings and was in receipt of the consideration of the sale transaction paid by cheque duly credited in his bank account.

2.11 Mr. Lakhani, learned Senior Advocate for the petitioner submitted that the dispute raised in the FIR would not have any significance since the power of attorney has never been utilised for transferring the property. The petitioner of Special Criminal Application No. 3385 of 2016 had signed the sale deed only as a confirming party in the year 1993 in the documents dtd. 29/9/1993 since no property was to be transferred of Somabhai Sakrabhai. Thus, it is contended that for the very first time, in the year 1993, after execution of power of attorney, Rameshbhai Dahyabhai exercised the authority granted by Somabhai. Mr. Lakhani, learned Senior Advocate for the petitioner submitted that the very sale deed dtd. 29/9/1993 specifies the fact that Somabhai Sakrabhai had no right, title, interest or share in the property Survey No.460 which had gone into the share of Ishwarbhai and Ramanbhai; and thus, the signature in the sale deed of Rameshbhai Dahyabhai would be as a confirming party to the sale transaction of Survey No.460, which itself clarifies that there was no injury to Somabhai or to his son - the complainant.

2.12 Mr. Lakhani, learned Senior Advocate for the petitioner submitted that though the complainant was party in various proceedings before different forum but had never raised the plea of forgery, and for the first time, in the year 2013, he came up with the stand of forgery. Relying on the judgment of Rajeshbhai Muljibhai Patel v. State of Gujarat reported in 2020(3) SCC 794 : AIR 2020 SC 818, learned Senior Advocate Mr.Lakhani submitted that the FSL report of hand writing expert is not a conclusive proof of any allegation of forgery and when the parties are before the Civil Court and when all the pleadings are raised before the Civil Court, it would be the court to take into consideration the provisions of Ss. 45 and 73 of the Indian Evidence Act, and barely on the sole opinion of the hand writing expert the FIR ought not to have been registered, and therefore, learned Senior Advocate Mr.Lakhani submitted that the continuation of FIR would amount to abuse of process of court as the same is filed with a malafide intention and therefore prayed for quashing of the impugned FIR, as also the subsequent proceedings filed in pursuance thereof.

(3.)Countering the argument, learned Senior Advocate Mr. J.M.Panchal alongwith Mr. Ashish Dagli, learned advocate for the respondent No.2-complainant submitted that the allegation in the FIR is more than a prima facie case as the impugned FIR registered is in compliance of the order passed in Special Criminal Application No.4967 of 2015, and therefore, submitted that delay in filing of the FIR would be of no consequence. Mr. J.M.Panchal, learned Senior advocate for the respondent No.2 submitted that in the criminal complaint and more specifically when the FIR is with the plea of forgery is supported by evidence in the form of hand writing expert report, the delay in filing the impugned FIR will have no significance. Learned Senior Advocate Mr.Panchal submitted that there would not be any bar of limitation for lodging the FIR.
3.1 Mr.Panchal, learned Senior Advocate for the respondent No.2 submitted that as soon as the complainant came to know about the forged irrevocable power of attorney, he had filed a complaint before the respective police station, but, since it was not within the jurisdiction, the complaint filed before Karanj Police Station was withdrawn, and that the closure report of Odhav Police Station was brought to the notice of the court during hearing of Special Criminal Application No. 4967 of 2017, and therefore, it cannot be said that there was any suppression of the progress towards the complaint or any suppression of material facts.

3.2 Mr.J.M.Panchal, learned Senior Advocate has relied upon the following decisions in support of his arguments.

(1) Neeharika Infrastructure Private Limited v. State of Maharashtra decided by Hon'ble Supreme Court in Criminal Appeal No. 330 of 2021 decided on 13/4/2021.

(2) Ram Babu v. State of Madhya Pradesh and others reported in (2009) 7 SCC 194.

(3) Dr. Lakshman v. State of Karnataka and others reported in (2019) 9 SCC 677.

(4) State of Madhya Pradesh v. Surendra Kori reported in (2012) 10 SCC 155.

(5) Dineshbhai Chandubhai Patel v. State of Gujarat and others reported in (2018) 3 SCC 104.

(6) Shantaben Bhurabhai Bhuriya v. Anand Athabhai Chaudhari reported in AIR 2021 SC 5368 : JT 2021 (11) SC 426.

3.3 Mr.J.M. Panchal, learned Senior Advocate submitted that this Court should be slow in quashing the FIR, when prima facie the facts discloses a criminal offence. Mr. Panchal, learned Senior Advocate submitted that at this stage the court has not to evaluate or assess the truth of the allegation but the question before the court is to decide the case on the basis of cognizable offence or the offences, alleged to have been committed by the accused persons. Mr. Panchal, learned Senior Advocate submitted that, on examination of the factual contents of the FIR, to see whether it discloses any prima facie cognizable offence or not; the High Court cannot act as an investigating agency and the High Court cannot appreciate the evidence nor can draw its own inference on the contents of the material relied on. Referring to the provisions of Sec. 482 of Cr.P.C, learned Senior Advocate Mr.Panchal submitted that the powers are to be exercised sparingly with circumspection and the High Court while examining an FIR/complaint should not enter into the disputed area of the allegation.