CR.MA/5980/2008 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 5980 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge? ========================================================= DHIRUBHAI KALABHAI KHACHAR - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR MP SHAH for Applicant(s) : 1,MS. KRUTI M SHAH for Applicant(s) : 1, MR M.R.MENGDEY, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 2, MR BM MANGUKIYA for Respondent(s) : 2, MS BELA A PRAJAPATI for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 24/09/2008 ORAL JUDGMENT 1. Rule. Mr.M.R.Mengdey, learned APP waives service of Rule on behalf of respondent No.1-State. Mr.B.M.Mangukiya, learned Advocate waives service of CR.MA/5980/2008 2/7 JUDGMENT Rule on behalf respondent No.2. With the consent of the learned Advocates appearing on behalf of the respective parties, the petition is taken up for final hearing today. 2. Present application under Section 482 of the Criminal Procedure Code is by the petitioner – original accused to quash and set aside the FIR being C.R.No.I-22 of 2008 registered with Paliyad Police Station, District – Bhavnagar given by respondent No.2 for the offences under Sections 471, 467, 468, 447, 420 and 341 of Indian Penal Code. 3. A complaint being C.R.No.I-22 of 2008 is lodged by respondent No.2 – original complainant for the aforesaid offences alleging inter-alia that the land ad-measuring 29 Gunthas of Survey No.38/5 was running in the name of Ambabhai Bhurabhai Koli in the year 1954 and thereafter in the year 1987 Jaysukhbhai Kanjibhai purchased the said land and in the year 2007 same was purchased by Ramanbhai Kiritbhai Dhandhal and from him the complainant purchased the said land. It was stated in the said complaint that CR.MA/5980/2008 3/7 JUDGMENT there was no one in possession of the said land between 1954 to 1987 and from 1987 to 2007 Jaysukbhai, his heirs and his patners were in possession. That during the period from 13.03.2007 to 24.12.2007, one Ramabhai Kiritbhai Dhandhal was in possession and from 24.12.2007, the complainant and his partners are in possession of the said land and inspite of that accused prepared false sale deed and created false ownership rights and illegally trespassed and put the sign board and at about 7.30 p.m. the accused started making fencing around the said land and thus, it was alleged that the applicant – accused has committed alleged offences. Hence, present application is filed by the applicant – original accused to quash and set aside the aforesaid complaint. 4. Ms.Kruti Shah, learned Advocate appearing on behalf of the applicant – accused has submitted that considering the averments made in the FIR same has been filed in connection with purely civil dispute pertaining to the title of the lands in question and civil dispute has been tried to be converted into CR.MA/5980/2008 4/7 JUDGMENT criminal proceedings which is nothing but abuse of process of law. It is further submitted that even allegations made in the FIR are false and incorrect. It is submitted that wife of the applicant purchased the land admeasuring one Acre and 4 Gunthas of Survey No.38/5, total admeasuring one Acre and 33 Gunthas by way of registered sale deed dated 03.08.1996 from one Purshottambhai Ambabhai Jamod, Hakabhai Bhurabhai Jamod and Chhanabhai Bhurabhai Jamod – original owners for sale consideration and sale deed was also registered with Sub Registrar, Botad. It is submitted that as such the applicant is bona fide purchaser of the land in the year 1996. It is further submitted that after execution of the said registered sale deed, name of the purchaser was mutated and thereafter original land owners and others raised objections with respect to certification of the entry and revenue proceedings were initiated. It is further submitted that even wife of the applicant has also filed Regular Civil Suit No.201 of 2008 in the Court of Learned Principal Senior Civil Judge, Bhavnagar on 11.03.2008 with respect to the lands in question. It is submitted that inspite of litigation in the Civil CR.MA/5980/2008 5/7 JUDGMENT Court, complaint has been filed with mala-fide intention and the complainant has tried to give criminal colour to a civil dispute. It is further submitted that averments made in the FIR do not make out any criminal offence against the applicant. It is further submitted that by impugned complaint the complainant wants to over reach the process of the Court by filing criminal complaint in a civil dispute. It is submitted that the person cannot be permitted to take short curt by way of filing criminal complaint for redressal of a civil wrong. Therefore, it is requested to quash and set aside set the impugned complaint. 5. Mr.B.M.Mangukiya, learned Advocate appearing for respondent No.2 – complainant has submitted that there was one another suit by the complainant herein being Civil Suit No.391 of 2008 in the Court of learned Principal Senior Civil Judge, Bhavnagar and in the same the complainant claimed ownership on the basis of registered sale deed dated 24.12.2007 with respect to lands bearing Survey No.38/5 and that there is settlement and the applicant has accepted CR.MA/5980/2008 6/7 JUDGMENT the registered sale deed in favour of the complainant and as such there is no dispute between the complainant and the accused now. Therefore, it is requested to pass appropriate order. 6. Mr.M.R.Mengdey, learned APP also requested to pass appropriate order considering averments in the complaint. 7. Heard the learned Advocates appearing on behalf of the respective parties. 8. On bare reading of the complaint, it seems that civil dispute is tried to be converted into criminal case. From the averments in the complaint, it appears that same are with respect to title of land for which revenue proceedings as well as proceedings before the Civil Court are pending. Even otherwise on bare reading of the complaint, it does not disclose and/or make out any criminal offence against the applicant. A person cannot be permitted to take short cut by way of filing criminal complaint for redressal of a civil wrong. Under the CR.MA/5980/2008 7/7 JUDGMENT circumstances to continue criminal proceedings by way of impugned complaint would be nothing but abuse of process of law. Even otherwise as stated above now there is already settlement between the complainant and the accused. Looking to overall facts and circumstances of the case to continue criminal proceedings would be not only abuse of process of law but unnecessary harassment to the parties. Under the circumstances, impugned complaint / FIR deserves to be quashed and set aside. 9. For the reasons stated above, the petition succeeds. Impugned complaint being C.R.No.I-22 of 2008 registered with Paliyad Police Station, District – Bhavnagar is hereby quashed and set aside. Rule is made absolute accordingly. [M.R.Shah,J.] satish