RASIKBHAI DE vs. IBHAI THERESHA

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SCR.A/10911/2018HC GujaratGJHC24074190201809 May 2019Bench: HONOURABLE THE CHIEF JUSTICE MS. JUSTICE SONIA GOKANI4 pages
AI SummaryDismissed

What did the High Court hold?

The High Court held that the petition did not deserve to be entertained. Regarding the alleged agreement to sell, the Court noted that its validity was yet to be examined by the Civil Court. The Court also raised a preliminary concern about the Rs. 2,40,00,000/- cash payment, questioning whether it had been accounted for with the Income Tax Department and noting the absence of any other evidence of legal transfer of consideration. Consequently, the Court directed that any summons to the petitioners by the police must be in writing, sent via message or email, or to their mobile number. It also directed that any complaint made by respondent No. 5 (presumably the complainant) should be registered as an FIR if a cognizable offense is made out, within one week. The matter was also referred to the Income Tax Department for examination of the Rs. 2.40 crores cash transaction. The petition was disposed of with these observations and directions.

What were the facts?

The petitioners filed a Special Criminal Application seeking directions to the respondents to consider their representations, cease harassment and pressure to withdraw a civil suit and cancel an agreement to sell, and to initiate departmental inquiries against erring officers. Petitioner No. 1 entered into an agreement to sell land for Rs. 2,60,000/-, paying Rs. 2,40,00,000/- in cash on December 7, 2017. A civil suit was filed in 2018. The petitioners alleged pressure to withdraw the suit and cancel the agreement. The High Court directed the police to register an FIR with prior permission. The complainant alleged the agreement was concocted and the large cash payment was suspicious. The State objected to relief, stating FIR registration was pending verification. The Court noted the civil suit was pending and questioned the accounting of the Rs. 2,40,00,000/- cash payment to the Income Tax Department.

What were the issues?

1. Whether the petitioners are entitled to directions for the respondents to consider their representations and cease harassment related to a civil dispute and agreement to sell, and to initiate departmental inquiries against officers (mixed question of law and fact, concerning powers of the High Court under Article 226 of the Constitution and principles of natural justice). Assessee's Contention (Petitioners): The petitioners argued they were being pressurized by the police machinery without receiving copies of any complaint or FIR, and the complainant was not appearing before the Civil Court. They sought protection from harassment and directions for departmental inquiries. Revenue's Contention (State and Complainant): The complainant argued the agreement to sell was concocted and a modus operandi to create a dispute over the land. They questioned the Rs. 2,40,00,000/- cash payment without possession. The State objected to relief, stating FIR registration was pending verification by the Investigating Officer.

Which sections of the Income-tax Act were involved?

Section 160,Section 41(A)

AI-generated summary — verify with the full judgment below

R/SCR.A/10911/2018 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CRIMINAL APPLICATION NO. 10911 of 2018 ========================================================== RASIKBHAI DEVSIBHAI THERESHA Versus STATE OF GUJARAT ========================================================== Appearance: for the Applicant(s) No. 2 MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1 NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3,4 MR HARDIK SONI, APP for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MS JUSTICE SONIA GOKANI Date : 09/05/2019 ORAL ORDER 1. Mr.Premal Rachh, learned advocate appears for the original complainant and his complaint was not being culminated into the FIR and is also party to the suit. He is permitted to be impleaded as party respondent. Necessary amendment to be carried out forthwith in the cause title. Mr.Rachh, is permitted to file his Vakalatnama on behalf of the complainant. 2. The petitioners are before this Court seeking following relief(s): “A) That the Hon'ble Court may be pleased to admit this petition. B) That the Hon'ble Court may be pleased to allow this Special Criminal Application by issuing appropriate writ order or direction directing the respondent No.2 to forthwith consider representation of the petitioners at Annexure-D, F & G and also be pleased to direct the respondents No.2, 3 & 4 herein not to harass and pressurize and threaten the petitioners particularly petitioner no.1 to withdraw the civil suit and to cancel the agreement to sale without possession in favour of the petitioner Page 1 of 4

R/SCR.A/10911/2018 ORDER no.1 and not to interfere in a land dispute/civil dispute pending before appropriate forum and not to call petitioners without making communication in writing in the interest of justice. C) This Hon'ble Court may be pleased to issue appropriate, writ order or direction by directing the respondent No.2 to initiate appropriate departmental enquiry against the erring officers for harassing and pressurizing and threatening the petitioners. D) Pending admission hearing and final disposal of this petition, this Hon'ble Court may be pleased to call for the necessary report in pursuance to the application of the petitioner at annexure-D, F & G in the interest of justice. E) Grant such other and further relief(s) as deemed just and proper by this Hon'ble Court in the interest of justice.” 3. It is the say of the petitioners that petitioner no.1 entered into one agreement to sell without possession with one Mavjibhai Sitapara, who is residing at Ganteshwar, Dist.: Rajkot pursuant to the agreement to sell for the land situated at Village Ganteshwar bearing Survey No.110 paiki 2. He purchased the same in the sum of Rs.2,60,000/- and he paid Rs.2,40,00,000/- in cash. Agreement had been executed on 07.12.2017. A civil suit has also been filed in the year 2018. 4. It is his grievance that there is an attempt made to pressurize him to cancel the agreement to sell and withdraw the civil suit, and therefore, the petitioners are before this Court with the aforesaid prayers. 5. This Court had issued the notice and directed the police to register the FIR with the prior permission of this Court. Page 2 of 4

R/SCR.A/10911/2018 ORDER 6. This Court has heard Mr.Ashish Dagli, learned advocate for the petitioners, Mr.Rachh, learned advocate for the complainant and Mr.Hardik Soni, learned APP for the respondent-State.

7.

According to Mr.Dagli, learned advocate, the petitioners have been pressurized by the police machinery without giving copy of the complaint or FIR. The complainant is not appearing before the Civil Court.

8.

Mr.Rachh, learned advocate submits that the entire agreement to sell has been concocted. It is the modus operandi on the part of the petitioners to have approached this Court after concocting the documents and also filing the civil suit so that the land would be in dispute. He has urged that if the huge amount of sale consideration of Rs.2,40,00,000/- (Two Crores Forty Lakhs only) would have been given in cash, there will be no question that possession be not handed over to the party. 9. Mr.Hardik Soni, learned APP has strongly objected to any relief. According to him, due to directions issued by this Court, the FIR could not be registered. The Investigating Officer was to verify the details from the concerned parties. 10. Having heard both the sides, this Court notices that the civil suit is pending and on specific queries raised by this Court, it is not being shown Page 3 of 4

R/SCR.A/10911/2018 ORDER as to whether the amount of Rs.2,40,00,000/- has been accounted in the income tax department. There is no other payment of sale consideration in relation to the said transaction to point out any transfer of consideration in a legal manner. So far as the alleged agreement to sell is concerned, such contention is still to be examined by the Civil Court concerned. Considering these preliminary details, the petition does not deserve to be entertained. It is being directed to the police authorities that at any time, if there is a requirement to call the petitioners either by issuing the summons under Section 160 of the Code of Criminal Procedure, 1973 or under Section 41(A) of the Code, the same shall be sent in writing. It shall also be sent through the massage or email or on his mobile number. Any complaint if made by respondent no.5 shall be registered as an FIR, if any cognizable offence is made out. The said exercise shall be done within one week from the date of receipt of copy of this order. Let the matter be also referred to the I.T. Department which shall examine the case of petitioner so far as unaccounted money of Rs.2.40 crores is concerned. 11. With the above observations and direction, the present petition does not deserve to be entertained. Accordingly, the same is disposed of. (SONIA GOKANI, J) rakesh/ Page 4 of 4

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