CR.MA/5577/2003 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 5577 of 2003 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE ========================================================= 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 ? ========================================================= VANMALIDAS BHURABHAI BAVARVA, - Applicant(s) Versus PRABHABEN KESHAVJIBHAI & 1 - Respondent(s) ========================================================= Appearance : MR YN RAVANI for Applicant(s) : 1, MR DJ CHAUHAN for Respondent(s) : 1, MS.ARCHNA C RAVAL APP for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE Date : 24/07/2008 ORAL JUDGMENT 1. This application under Section 482 of the Code of Criminal Procedure is preferred by the original accused who sought to be prosecuted by lodging F.I.R. with Morbi City Police Station vide M.Case No.406 of 1998 on 18.12.1998 whereby, present opponent No.2 CR.MA/5577/2003 2/4 JUDGMENT accused the applicant of offence punishable under Section 420 of the Indian Penal Code. 2. The roots of the dispute lie in a transaction between the applicant and respondent No.1 in the form of an agreement to sale executed by the applicant in favour of respondent No.1 whereby he sold a house in Chandrashnagar society located on Survey No.1245/46, Plot No.47, Sub-Plot No.3 over approximately 400 sq.ft of land. The construction was approximately 350 sq.ft. The sale price was fixed at Rs.85,000/. Unindisputedly, its total consideration of Rs.70,000/- was passed over to the applicant by respondent No.1 and possession of the property was handed over to respondent No.1 somewhere on the date of execution of deed on November, 20 1991. Subsequently, respondent No.1 filed Special Civil Suit No.36 of 1992 in the Civil Court at Morbi praying first specific performance of the contract by executing a sale deed in favour of respondent No.1 and handing over all the documents of title. Respondent No.1 to show her bona fides, deposited Rs.15,000/- in the Court. In the written statement, the applicant specifically indicated that the documents of title have already been handed over to the plaintiff. The applicant also shown his readiness to take back the property and refund the money of consideration received by him. In that suit, by Exh.69, he CR.MA/5577/2003 3/4 JUDGMENT indicated his readiness to perform the contract or to take back the money. This was on 29.12.1997 and, thereafter, the F.I.R. came to be lodged by respondent No.1 as stated above on 18.12.1998, that is nearly after one year of the purshis, seven years of the transaction and six years of filing of suit. 3. It appears that the plaintiff – respondent No.1 here succeeded before the Civil Court and decree came to be passed in his favour. An appeal was preferred before this Court which, in turn, came to be transferred to the District Court by virtue of introduction of amendment in the Civil Court's Act and the District Court has allowed the appeal in favour of the applicant. 4. Be that as it may. What is reflected from the above narration of facts is that the disputed transaction was entered into in the year 1991 for charge of landed property. The dispute is raised in the year 1992 by filing a suit regarding measurement of the land and the construction. In a suit for specific performance where the defendant has showed his readiness to perform the contract. He has even expressed his readiness to take back the property and refund the consideration. After about a year thereafter, the F.I.R. is lodged alleging cheating. 5. It is, therefore, clear that the dispute is purely of a civil nature which is sought to be given colour of a criminal offence. The criminal action is CR.MA/5577/2003 4/4 JUDGMENT also taken at a very belated stage and even, in civil litigation, respondent No.1 has lost her case which is founded on this very transaction. In the opinion of this Court, therefore, the application deserves to be allowed and the same is allowed. 6. Criminal Case registered before the Judicial Magistrate First Class, Morbi being Criminal Case No.6 of 1998 on 17.12.1998 on basis of which M.Case No.406 of 1998 is registered with Morbi City Police Station is hereby quashed. Rule is made absolute. (A.L.DAVE, J.) Hitesh