MANSUKHBHAI GORDHANBHAI SIDDHPARA(PATEL) Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of this petition under Articles 226 and 227 of the Constitution of India r.w. Section 482 of the Criminal Procedure Code, the petitioners original accused have prayed for an appropriate order quashing and setting aside the FIR being I CR No. 224 of 2007 registered with Varacha Police Station, Surat.

(2.) An FIR is filed by the respondent No.2 herein original complainant being I CR No. 224 of 2007 at Varacha Police Station, Surat on 9.5.2007 for the offence punishable under sections 465, 467, 368, 401 and 114 of Indian Penal Code alleging inter alia that she is the owner of one plot in T.P. Scheme No. 4 being plot No.65, R.S.No.339, admeasuring about 1600 sq fts in Katargam, District Surat and that the petitioner No. 2 was known to Ashok son of the complainant. It is further alleged in the said complaint that some writings were obtained by the petitioner No.2 from Ashok by giving false promises with regard to getting the land on the said land and misusing the same, the signature was obtained on the sale-deed and power of attorney after one and half year back. It is further alleged in the complaint that before 8 months of filing of the complaint, she came to know that on the basis of power of attorney of her son - Ashok, the petitioner No.2 has sold the said plot by registered sale-deed in favour of the petitioner No.1 herein. It is alleged in the complaint that no such power of attorney has been given in favour of the petitioner No.2 Prathmesh Dhirubhai Sarasiya and that no such signature and/or thumb impression has been given by her son - Ashok and therefore, it is alleged that the petitioners have committed offence under sections 465, 467, 368, 401 and 114 of Indian Penal Code and therefore, the aforesaid complaint has been filed. Being aggrieved and dissatisfied with the same, the petitioners original accused Nos.1 and 2 have preferred present petition under Articles 226 and 227 of the Constitution of India r.w. section 482 of the Criminal Procedure Code to quash and set aside the impugned complaint as according to the petitioners, the same is nothing but sheer abuse of process of Court and the same is filed with malafide intentions.

(3.) Shri M.C.Barot, learned advocate appearing for the petitioners has vehemently submitted that the impugned complaint has been filed after 8 months of registered sale-deed and in fact on the basis of the registered sale-deed when entry was to be mutated in the record of rights in favour of the petitioner No.1 at that time, objections were invited but the complainant has never objected to the same by raising the objections and/or making grievance with regard to not signing the power of attorney. He has also further submitted that as such, the respondent No.2 original complainant has filed one R.C.S.No.443 of 2006 in the Court of learned Principal Senior Civil Judge, Surat for declaration and permanent injunction with regard to the land in questions in which it is specifically mentioned by the respondent No.2 herein that her son Ashok has executed one power of attorney in favour of the petitioner No.2 herein original accused No.1 and he is trying to defeat her rights. It is submitted that it is admitted by the respondent No.2 original complainant with regard to the execution of the power of attorney in favour of the original accused No.1 Prathmesh Dhirubhai Sarasiya. It is also further submitted by him that even in the public notice given by Ashok son of the original complainant, it is specifically mentioned that power of attorney has been given to the original accused No.1 Prathmesh Dhirubhai Sarasiya with respect to the property in question, however, the petitioner No.2 herein original accused No.1 has not acted as per the mortgaged deed and therefore, the power of attorney is cancelled. Under the circumstances, even as per the Ashok son of the original complainant, power of attorney was given by him in favour of the original accused No.1 Prathmesh Dhirubhai Sarasiya and therefore, the averments and allegations in the complaint that no such power of attorney was given by Ashok to the original accused No.1 Prathmesh Dhirubhai Sarasiya is absolutely false and the said allegations are made with malafide intentions. Under the circumstances, it is requested to quash and set aside the impugned FIR as it is nothing but sheer abuse of the process of the Court and the same has been filed with malafide intentions to get some more money.