PRAVIN PREMCHAND SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE petitioner, a resident of England, has invoked the provisions of Section 482 of Cr. P. C. for pressing the prayer to set aside the complaint filed by respondent no. 2 in the court of learned Additional Chief Metropolitan Magistrate, Court No. 45, Kurla, Mumbai, for the offences punishable under Section 406 read with Sections 465, 467, 468 and 471 of I. P. C. While admitting the petition by a detailed oral order dated 21. 08. 2008, stay of further proceedings and investigation in connection with M. C. R. No. 2/2005 and Criminal Case No. 18/iandr/2005 pending before the Court in Mumbai, was granted and Rule was made returnable on 10. 09. 2008. On 10. 09. 2008, respondent no. 2 had appeared through advocates and filed affidavit-in-reply. The hearing was adjourned because court-time was over. Thereafter on 22. 09. 2008, in the teeth of opposition on behalf of respondent no. 2, adjournment was sought and granted on the basis of sick note of learned counsel Mr. Anil S. Dave with the clarification that the ad-interim relief granted earlier was restricted to the petitioner only, so as to prevent the other accused persons from taking disadvantage of the order of this court. On 20. 10. 2008, while the original complainant was personally present alongwith his advocate from Mumbai to press for hearing of the petition, it was stated by learned counsel Mr. Dave that the petitioner was being called at his office for the purpose of exploring the possibility of a settlement and in case no viable settlement could be negotiated, no further adjournment would be sought on behalf of the petitioner. It was expressly on that understanding and statement that no further adjournment or extension of the interim relief may be granted, hearing was adjourned to 18. 11. 2008 for final disposal with the clarification that even if final hearing does not take place on that date, interim relief would not be extended. It was thereafter, on 18. 11. 2008, that detailed order vacating the interim relief and imposing cost of Rs. 25,000/- was made. Adjournments were sought even thereafter on the ground that the aforesaid order dated 18. 11. 2008 was being carried in appeal before the Supreme Court, while learned counsel for the respondent had protested and objected to any adjournment. However, since the court-time was over on 16. 01. 2009, the hearing was adjourned to 30. 01. 2009. It is thereafter that the petition has come to be argued on merits for the first time after initial grant of ex-parte interim relief and vacation thereof by the order dated 18. 11. 2008, which was proposed to be challenged by the petitioner. As on today, admittedly, that order dated 18. 11. 2008 is neither challenged nor complied. However, the court has heard learned counsel on merits in extenso and the contentions and decision thereon are recorded as under:

(2.) IT was submitted by learned counsel, Mr. A. S. Dave that, as stated on oath in the petition, the petitioner was given a general power of attorney for effecting sale of properties in the year 1997 and that was executed in Jamnagar. The agreement to sell the property in question was registered at Jamnagar and subsequent sale deed was also executed in Jamnagar. Thus, the transaction from which the complaint arose was entered into and executed in Jamnagar, while the complaint was filed in Mumbai with the ulterior motive of harassing the petitioner and hence, it was required to be quashed. As against that, according to the complaint of respondent no. 2, the petitioner had agreed to remit an amount of Rs. 1 crore on the understanding that the complainant would be required to execute a special power of attorney in respect of the properties located in Jamnagar. Thus, the petitioner induced the complainant into executing a power of attorney which was handed over to the petitioner at the complainant's residence in Mumbai, according to the complaint. Thereafter, the petitioner did not pay any amount to the complainant, tempered the document of power of attorney and surreptitiously created third party rights upon the properties of the complainant, according to the allegations.

(3.) HAVING regard to the above facts, the issue of territorial jurisdiction of this Court was raised and agitated and after briefly dealing with that, the interim order dated 18. 11. 2008 was made to vacate the ex-parte ad-interim relief.