CR.MA/3942/2007 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 3942 of 2007 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 ? =================================== GAURANGBHAI KHETABHAI PATEL & 1 - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) =================================== Appearance : MR MP SHAH for Applicant(s) : 1 - 2.MS. KRUTI M SHAH for Applicant(s) : 1 - 2. MR KODEKAR, ADDL PUBLIC PROSECUTOR for Respondent(s) : 1, MR TULSHI R SAVANI for Respondent(s) : 2, =================================== CORAM : HONOURABLE MR.JUSTICE M.R. SHAH CR.MA/3942/2007 2/7 JUDGMENT Date : 23/07/2007 ORAL JUDGMENT Rule. Shri RC Kodekar, learned APP waives service of rule on behalf of the respondent No.1. Shri Savani, learned advocate waives service of rule on behalf of the respondent No.2. 2. By way of this application u/s 482 of Criminal Procedure Code, the applicants herein, original accused Nos.2 and 3 have prayed for an appropriate order to quash and set aside the complaint being M. Case No.1 of 2006 registered at Jalalpor Police Station, Dist: Navsari against the applicants for the offence u/s 420, 406, 323 and 506(2) of the IPC. At the outset, Ms KM Shah, learned advocate appearing on behalf of the applicants has submitted that she will be restricting the present application for quashing and setting aside the impugned complaint against the applicants for the offence u/s 406 r/w 420 of the IPC only. 3. The respondent No.2 herein, original complainant has CR.MA/3942/2007 3/7 JUDGMENT filed the present complaint being complaint No.256/06 in the Court of ld. Chief Judicial Magistrate, Navsari against the applicants and one Chandubhai Umedbhai Patel (original accused No.1) for the offence u/s 406, 420, 323 r/w 506(2) of the IPC alleging inter alia that the land in question was of the ownership of one Pradhyuman Dhirubhai Shah and others and an agreement to sale was entered into in favour of the complainant for the purchase of the said property and that an amount of Rs.18 lacs was paid to the original accused No.1 and in spite of that, the original accused No.1 has sold the property in question in favour of the applicants and thereby it is alleged that the original accused No.1 and the applicant No.2 have committed the offence punishable u/s 406 r/w 420 of IPC. That the ld. Chief Judicial Magistrate, Navsari by its order dated 7-10-06 passed an order for investigation by Police Inspector, Jalalpor Police Station u/s 156(3) of Criminal Procedure Code and being aggrieved by the same, the applicants, original accused Nos.2 and 3 have preferred the present application u/s 482 of Criminal Procedure Code to quash and set aside the impugned complaint in so far relating to, for the offence u/s 406 r/w section 420 of the CR.MA/3942/2007 4/7 JUDGMENT IPC. 4. Ms KM Shah, learned advocate appearing on behalf of the applicants has vehemently submitted that on bare reading of the complaint, the main allegations are against the original accused No.1 and even the agreement to sale was between the original land owner Pradhyuman Dhirubhai and others, still there are no allegations against the original owners and that no complaint is filed against them. It is submitted that the allegations in the complaint are that at the time of agreement to sale, the original complainant has paid an amount of Rs.18 lacs to the original accused No.1 and still the property in question came to be sold in favour of the applicants. It is submitted that so far as the applicants are concerned, they are the bona fide purchaser of the property in question for value and they have purchased the property in question by registered sale deed. Therefore, it is submitted that even on considering the complaint as it is, no case is made out against the applicants for the offence u/s 406 r/w section 420 of IPC and therefore, it is requested to quash and set CR.MA/3942/2007 5/7 JUDGMENT aside the complaint accordingly. 5. On the other hand, Shri Savani, learned advocate appearing on behalf of the original complainant has submitted that there are clear allegations against the applicants also in the complaint and that in spite of the fact that there was an agreement to sale in favour of the original complainant and an amount of Rs.18 lacs was paid to the original accused No.1, the property in question came to be sold in favour of the applicants and therefore, it is requested not to exercise the powers u/s 482 of Criminal Procedure Code and not to quash the complaint. 6. Heard the learned advocates appearing on behalf of the parties. 7. It is required to be noted at this stage that so far as the applicants, original accused Nos.2 and 3 are concerned, they are the purchaser of the property in question which they have purchased by registered sale CR.MA/3942/2007 6/7 JUDGMENT deed for value and they have paid the consideration by cheques. On bare reading of the complaint, it appears that the main allegations are against the original accused No.1 and it is alleged in the complaint that the agreement to sale was executed in favour of the original complainant in the year 2004 and that the original accused No.1 was paid Rs.18 lacs towards the sale consideration by the original complainant and still the property in question came to be sold in favour of the applicants. Thus, on considering the averments in the complaint and considering the complaint as it is, no case is made out against the applicants for the offence u/s 406 r/w section 420 of IPC . The applicants are the purchaser of the property in question which they have purchased for value by registered sale deed. Merely because the applicants have purchased the property in question, it cannot be said that the applicants have committed any offence as alleged u/s 406 r/w section 420 of IPC. It is required to be noted that though the agreement to sale was between the original complainant and the original land owner, no complaint has been filed against the original land owner. Considering the over all facts and circumstances of the case and the averments in CR.MA/3942/2007 7/7 JUDGMENT the complaint and it does not disclose that the applicants have committed any offence u/s 406 r/w section 420 of IPC, to continue the criminal prosecution against the applicants for the offence u/s 406 r/w section 420 of IPC would be nothing but an abuse of process of law. Under the circumstances, this is a fit case for which powers u/s 482 of Criminal Procedure Code are required to be exercised. 8. For the reasons stated above, the application succeeds in part and the impugned complaint being M. Case No.1 of 2006 registered at Jalalpor Police Station, Dist: Navsari only against the applicants for the u/s 406 r/w section 420 of IPC requires to be quashed and set aside and is accordingly quashed and set aside. For rest of the offence, the criminal proceedings against the applicants may go on as well as against the other accused also, the proceedings may go on. Rule is made absolute. (M.R. Shah, J.) shekhar/-