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SCR.A/2357/2010 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 2357 of 2010
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 ?
======================================
BHARATSINH
MOHANSINH MANGROLA - Applicant
Versus
STATE
OF GUJARAT & 1 - Respondents
======================================
Appearance :
MR
PARTHIV A BHATT for the Applicant.
MR M.R.MENGDEY, APP for
Respondent(s) : 1,
MR RAJESH DEVAL for Respondent(s) :
2,
======================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 02/12/2010
ORAL
JUDGMENT
1. Draft
amendment is allowed. The petitioner to carry out the same.
2. Rule.
Mr.M.R.Mengdey, learned Additional Public Prosecutor waives service
of notice of Rule on behalf of respondent No.1 and Mr.Rajesh Deval,
learned advocate waives service of notice of Rule on behalf of
respondent No.2 – original complainant.
3. In
the facts and circumstances of the case and with the consent of the
learned advocates appearing on behalf of the respective parties and
in view of the settlement between the parties, the present petition
is taken up for final hearing today.
4. By
way of this petition under Article 226 of the Constitution of India
read with Section 482 of the Code of Criminal Procedure, the
petitioner – original accused has prayed for an appropriate
writ, order and/or direction, quashing and setting aside the impugned
complaint / FIR being C.R.No.I-85/2010 registered with Valia Police
Station, which has been lodged against the petitioner –
original accused by respondent No.2 – original complainant for
the offence punishable under Sections 406 and 420 of the Indian Penal
Code.
5. It
appears from the impugned complaint / FIR that the petitioner is
power of attorney holder of Abeysinh Harisinh Mangrola, who was the
owner of the land bearing Block No.91 admeasuring 23144 sq.meters.
That the said land was converted from Agricultural Use to
Non-agricultural Use and was sub-plotted. It appears that on
19/09/2002, respondent No.2 – original complainant purchased
two plots bearing Nos.37 & 38 of Block No.91 from said Abeysinh
Harisinh Mangrola and the petitioner being power of attorney holder
of said Abeysinh Harisinh Mangrola executed a sale deed in favour
of respondent No.2 on sale consideration of Rs.40,000/- with respect
to aforesaid two plots. It appears that respondent No.2 sold
aforesaid two plots i.e. Plot Nos.37 & 38 to Ritaben Manharbhai
Patel by registered sale deed. It appears that the said Ritaben found
that Plot No.37 was earlier sold to Umanglal Shankerlal Doshi and he
was in possession of the said plot and despite the same, it was sold
to Ritaben, the said Ritaben brought the said fact to the notice of
the petitioner and, therefore, respondent No.2 served Notice upon
the petitioner on 3/4/2010.
6. It
is the case on behalf of the petitioner that an obvious mistake was
committed when plots were sold to respondent No.2 and, therefore, the
petitioner immediately agreed to cure the mistake by offering another
plot to the said Ritaben. However, some time was required and in the
meantime, respondent No.2 had lodged the aforesaid complaint with
Valia Police Station on 13/07/2010 for alleged commission of offence
punishable under Sections 406 and 420 of the Indian Penal Code.
Hence, the petitioner has preferred the present Special Criminal
Application to quash and set aside the impugned FIR by submitting
that the petitioner has not committed any offence as alleged against
him for the offence punishable under Sections 406 and 420 of the
Indian Penal Code and there was no intention to cheat the respondent
No.2. It is submitted that it was an obvious mistake committed at the
time when plot was sold to respondent No.2 and having realized the
mistake, the petitioner agreed to cure the said mistake by offering
one another plot to subsequent purchaser i.e. Ritaben.
7. Today
when the present petition is taken up for final hearing, Mr.Rajesh
Deval, learned advocate had appeared on behalf of respondent No.2 –
original complainant. Learned advocates appearing on behalf of the
respective parties have stated at the bar that the purchaser i.e.
Ritaben Manharbhai Patel had purchased the said plot No.37 from
respondent No.2, agreed for the settlement and to accept Plot No.91
in lieu of Plot No.37. A sale deed is also executed in favour of the
said Ritaben on 15/11/2010 and the said Ritaben is satisfied with
the same and, therefore, neither respondent No.2 nor the said Ritaben
have any grievance. Rajesh Deval, learned advocate appearing on
behalf of respondent No.2 has stated at the bar, under the
instruction received from respondent No.2, who is personally present
in the Court, that in light of the above, he has no objection, if the
impugned complaint / FIR is quashed and set aside.
In
view of the above and in the facts and circumstances of the case and
subsequent development as narrated hereinabove and even otherwise
considering the facts in the complaint, this Court is of the opinion
that it cannot be said that the petitioner has committed an offence
punishable under Sections 406 and 420 of the Indian Penal Code and,
therefore, the impugned complaint deserves to be quashed and set
aside in exercise of power under Section 482 of the Code of Criminal
Procedure.
8. It
appears that there is a bonafide mistake on the part of the
petitioner in allotting Plot No.37 to respondent No.2, which was
already sold to the another person earlier and having brought to his
notice, he has already cured the mistake by allotting and handing
over possession of another Plot in lieu of Plot No.37. It appears to
the Court that no case is made out against the petitioner for the
offence punishable under Sections 406 and 420 of the Indian Penal
Code. Considering the aforesaid facts and circumstances of the case,
the petition deserves to be allowed and the impugned compliant
deserves to be quashed and set aside.
9. For
the reasons stated hereinabove, the petition succeeds and the
impugned complaint/FIR being C.R.No. I-85/2010 registered with Valia
Police Station is hereby quashed and set aside. Rule is made absolute
accordingly.
[M.R.SHAH,J]
*dipti
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