KRISHNAPALSINGH DILUBHA VAGHELA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present application has been filed under sec. 482 of the Code of Criminal Procedure for the prayer that the FIR being C.R. No. I-1/2011 registered with Sanand Police Station dated 3.1.2011 for the alleged offences under sec. 406, 421 471 and 120B may be quashed and set aside on the grounds stated in the memo of application.

(2.) THE facts giving rise to the present application briefly stated are that the petitioner is the original accused No. 23 and the complaint came to be filed by respondent No. 2-original complainant with regard to transaction of the land for which banakhat was entered into by respondent No. 2 with the original owners of the land situated at Kundalgam, Tal. Sanand, Dist. Ahmedabad. It is stated that the complainant had paid Rs. 5 lakhs in the year 2007 to the petitioner for getting the registered documents between the original owners and the complainant from the Registrar's office, to cancel subsequent documents/sale deeds between the original owners and the subsequent purchasers and also to obtain the kabulatnama from the original owner in favour of the complainant. It is alleged that part payment was made to the petitioner by the complainant in presence of one Jayeshbhai Shah for the said purpose. It is further alleged that the petitioner is having two survey Nos., 26/1 and 27/1 at village Kundal and it is also alleged that instead of acting on behalf of the complainant as agreed, the petitioner obtained the power-of-attorney in his name and on the basis of such power of attorney survey No. 27/1 was sold to the mother of the petitioner which led to filing of the present complaint. Further, it is alleged that the petitioner has availed a loan from UCO Bank, Sarkhej Branch by mortgaging the land bearing survey No. 26/1 and also other lands. After paying the dues of UCO Bank, the said bank has issued 'no due certificate' which is also mentioned in Village Form No. 6.

(3.) LEARNED Sr. Counsel Mr. SI Nanavati appearing with learned advocate Ms. Anuja Nanavati for the petitioner has pointedly referred to the papers and the details at length and submitted that earlier one Mr. Rutul Mehta had purchased land in August 2009 for which the title clearance notice was also given and respondent No. 2 complainant herein had raised objection to such notice vide reply dated 17.8.2009, but has not filed thereafter any proceedings including either a complaint for the alleged offences or a suit or any proceedings. LEARNED Sr. Counsel Mr. Nanavati submitted that if respondent No. 2 complainant had entered into the transaction with regard to the same land with the original owners in 1995 and the petitioner herein has made the transaction and sale deed was entered into in the year 2007, there is no explanation as to why respondent No. 2 original complainant, who himself is a lawyer, has not filed nay proceedings including a suit for specific performance of the contract against the original owner from 1995 to 2007. He further emphasised that even though the sale deed has been entered into by the petitioner and subsequent purchaser from the original owner in the year 2007, the complaint has been filed only recently for which there is no explanation regarding delay. LEARNED Sr. Counsel Mr. Nanavati strenuously submitted that the only explanation which has been offered is that respondent No. 2 original complainant met with an accident in the year 1997 for which he was bedridden for some time, which is neither here nor there as, even if such explanation is accepted, it could be no justification for not taking action after 1998 till 2011.