Karnataka High Court
Abdul Razzak S/O Abdul Aziz vs Mohammed Ayub Khan on 7 July, 2021
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 7th DAY OF JULY, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
CRIMINAL PETITION NO.201419/2019
BETWEEN:
ABDUL RAZZAK S/O ABDUL AZIZ,
AGE : 53 YEARS, OCC : AGRICULTURE,
R/O NOORKHAN, TALEEM,
BIDAR, DIST : BIDAR.
... PETITIONER
(BY SRI AMEET KUMAR DESHPANDE, ADVOCATE)
AND:
MOHAMMED AYUB KHAN,
S/O MOHAMMED ISMAIL KHAN,
AGE : 51 YEARS, OCC : AGRICULTURE,
R/O BIDAR.
... RESPONDENT
(BY SRI SHIVANAND PATIL, ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C PRAYING A) TO QUASH THE IMPUGNED
ORDER DATED 17.10.2015 IN C.C.NO.350/2014 ON
APPLICATION FILED BY PETITIONER UNDER SECTION 245
OF CR.P.C PENDING ON THE FILE OF I ADDL. JUDICIAL
MAGISTRATE FIRST CLASS-II, BIDAR ON ITS FILE,
2
B) QUASH THE IMPUGNED ORDER DATED 03.06.2019 IN
CRL.REV.P.NO.5/2016 PASSED BY ADDL. DISTRICT AND
SESSIONS JUDGE, BIDAR AND C) TO ALLOW THE
APPLICATION FILED BY THE PETITIONER HEREIN UNDER
SECTION 245 OF CR.P.C. DATED 25.02.2015 AND
THEREBY DISCHARGE THE PETITIONER IN
C.C.NO.350/2014 FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 465, 471 AND 420 OF IPC ON THE FILE
OF I ADDL. JMFC-II, BIDAR.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDER ON 29.06.2021, COMING ON FOR
'PRONOUNCEMENT OF ORDER' THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
The petitioner has field this petition under Section 482 of Code of Criminal Case (for short, 'Cr.P.C') for quashing the impugned order dated 17.10.2015 passed in C.C.No.350/2014 on application filed by him under Section 245 of Cr.P.C pending on the file of the I Additional JMFC-II Court, Bidar and consequently order passed in Crl.Rev.P.No.5/2016 by Additional District Judge, Bidar and sought to allow the application filed by him under Section 245 of Cr.P.C dated 25.02.2015 and thereby discharge him. 3
2. The factual matrix leading to the case is that the present petitioner/accused No.2 is the son of deceased-accused No.1. The complainant has lodged a complaint making allegations that the deceased- accused No.1 and present petitioner/accused No.2, sold 04 acres of land in Sy.No.47/A of Naubad, Taluk Bidar suppressing the fact that 03 acres 07 guntas of land in Sy.No.47/A has been acquired by the Karnataka Industrial Areas Development Board (for short, 'KIADB') and only 33 guntas of land was remained. It is alleged that the present petitioner along with his deceased-father deceived the complainant and sold the land, which is attested by two attesting witnesses.
3. The Investigating Officer has submitted 'B' final report, thereafter the court has taken cognizance and recorded the sworn statement, has issued process. Initially, the complaint was directed against 4 accused No.1 to 4 and all the accused including the present petitioner have challenged the issuance of process and this Court vide order dated 09.06.2009 in Criminal Petition No.8722/2009, quashed the proceedings as against accused Nos.3 and 4 with a direction that the proceedings against accused No.1 and 2 i.e., deceased-accused No.1 and present petitioner/accused No.2 shall go on.
4. Then accused No.1 passed away and case against him stands abated. Thereafter, accused No.2 filed an application for discharge under Section 245 of Cr.P.C and same was opposed by the complainant and the said application came to be rejected by the learned Magistrate vide his order dated 17.10.2015. Being aggrieved by the said order the present petitioner has filed revision in Criminal Revision Petition No.5/2016 before the Additional District and Sessions Judge, Bidar and same was rejected by order 5 dated 03.06.2019. Hence, the petitioner/accused No.2 has filed this petition for quashing the impugned orders.
5. Heard the learned counsel for the petitioner/accused No.2 and the learned counsel for respondent. Perused the records.
6. The learned counsel for the petitioner/accused No.2 would submit that the present petitioner/accused No.2 is only one of the attesting witness to the sale deed and the sale deed was executed by his father i.e., accused No.1 and in entire complaint there is no specific allegations made against him except omnibus allegations. He further contended that the sale deed was of 1998 and the complaint was filed after 11 years and the ingredients of Sections 468 and 471 of Indian Penal Code (for short, 'IPC') are not attracted. He would submit that the matter is of civil nature and the petitioner/accused No.2 has not 6 availed any civil remedy till today and now the available material does not disclose any material as against him so as to frame the charge as the ingredients of Section 420 of IPC are also not attracted against him and there is no question of forgery as the sale deed is admitted.
7. He would further submit that in fact the complaint was lodged by petitioner/accused No.2 against complainant as he has forged the sale deed subsequently and hence, he sought for allowing the petition by setting aside the impugned orders of the learned Magistrate and revisional court.
8. The learned counsel for respondent has seriously resisted the petition on the ground that the petitioner/accused No.2 is the son of the deceased- accused No.1 and the sale deed was executed jointly and he cannot plead his innocence and all along he has actively participated in the transaction and 7 cheated the complainant/respondent. It is further contended that the delay and other things have no relevancy at this juncture as the offence is punishable with more than three years and limitation act does not come in anyway.
9. He further contended that there is meeting of mind between accused Nos.1 and 2 and initially they filed petition in Criminal Petition No.8722/2009, which was already dismissed with a specific direction to proceed against them and only after the death of his father, he has moved an application. Admittedly, accused No.1 was not the owner of 04 acres of land and hence he asserted that there is prima facie material and sought for rejection of the petition.
10. Having heard the arguments and on perusing the records, it is evident that the present petitioner/accused No.2 along with his deceased 8 father/accused No.1 was prosecuted for the offences punishable under Sections 465, 471 and 420 of IPC.
11. It is an undisputed fact that his deceased father/accused No.1 was owner of land bearing Sy.No.47/A and out of the said land, 03 acres 07 guntas of land was acquired by KIADB and only 33 guntas of land had remained with him. But the allegation is that he sold 04 acres of land in Sy.No.47/A to the complainant/ respondent. He had received the compensation regarding acquisition, but even then, by misleading the complainant/respondent cheated him by executing the sale deed, for 04 acres of land. It is also an admitted fact that the present petitioner/accused No.2 being the son of the deceased-accused No.1 was signatory to the sale deed, as a witness.
12. The present petitioner-accused No.2 cannot plead that he is only a signatory and he was unaware 9 of the transaction and admittedly, he is the son of deceased-accused No.1. The allegations made in the complaint disclose that accused Nos.1 and 2 together approached the complainant/respondent and sale negotiations were held. The present petitioner/ accused No.2 never asserted that he had no knowledge of acquisition of 03 acres 07 guntas of land by the KIADB.
13. Further, it is also important to note here that during the lifetime of his father, in 2009 itself he filed the Criminal Petition No.8722/2009, along with his father for quashing the proceedings. The said petition came to be rejected by order dated 09.06.2009, by this Court. After taking cognizance, he has challenged the said order and that was rejected. Then, after the death of his father-accused No.1, he has moved this application for discharge. This clearly disclose the intention of the petitioner-accused No.2 10 and the matter was prolonged for almost more than 10 years.
14. It is also important to note here that the petition for quashing was filed jointly and only after the death of his father, he wanted to take advantage of the situation on the ground that he is only a signatory to the sale deed as a witness but not an executant. However, he being the son of the deceased/accused No.1 cannot plead that he had no knowledge of the transaction pertaining to the sale of land and acquisition. He never pleaded in this regard.
15. Further, the complainant/respondent was examined as PW.1 on 12.12.2014. His cross- examination was deferred as per the request of the defence counsel. Thereafter, on 25.02.2015, he filed an application for discharge. He has pleaded the same ground which he has taken earlier in Criminal Petition No.8722/2009, which was dismissed.
11
16. No doubt, though the allegations were regarding offence under Sections 465 and 471 of IPC are made, but prima facie the ingredients does not appear. But, as regards Section 420 of IPC there is clear evidence at this juncture to frame the charge. There is meeting of mind and he is the son of the deceased/accused No.1, who has sold the land and present petitioner-accused No.2 was signatory to the sale deed being the son of the vendor. Hence, he should have cautioned the complainant/respondent in this regard, but, he did not do so.
17. Further the evidence given by complainant/respondent as PW.1 disclose that both the accused together cheated him and cross examined the witnesses was deferred and without cross- examining the complainant, the petitioner/accused No.2 is seeking discharge. If the evidence remains unchallenged that itself is sufficient to frame the 12 charge as there is allegations of cheating under Section 420 of IPC.
18. The learned counsel for the petitioner- accused No.2 has placed reliance on a decision reported in 2011 AIR SCW 5952 [M/s. Thermax Ltd. v. K.M.Johny]. But, the facts are entirely different and it is in respect of sale of the property and criminal breach of trust. Hence, the said principles cannot be made applicable to the case on hand.
19. He further placed reliance on a decision reported in 1976 Supreme Court 1947 [Smt.Nagawwa v. Veeranna Shivalingappa Konjalgi and others]. But, it was pertaining to issuance of process and that principles cannot be made applicable to the case on hand.
20. He has further placed reliance on a decision reported in AIR 2005 Supreme Court 1047 [Suresh v. Mahadevappa Shivappa Danannava 13 and another]. But, it is pertaining to taking cognizance of the offence and as against taking cognizance, he has already challenged in Crl.P.No.8722/2019 and failed in his attempt.
21. He further placed reliance on a decisions reported in AIR 2003 Supreme Court 1069 [Ajay Mitra v. State of M.P and others], 2010 AIR SCW 6561 [Rama Devi v. State of Bihar and Ors.] and AIR 2019 Supreme Court 210 [Anand Kumar Mohatta and another v. State (Govt. of NCT of Delhi) Department of Home and another]. The said cases are pertaining to quashing of the complaint and FIR. But herein that stage has already crossed and the evidence of complainant/respondent is also available who has deposed regarding present petitioner/accused No.2 along with deceased father/accused no.1 cheating him. Hence, the said 14 principles does not come to the aid of the petitioner- accsued no.2 in anyway.
22. He further relied on a decision reported in AIR 2003 Gujarat 169 [Anil Mahajan v. Bhor Industries Ltd.,]. But that was in respect of breach of trust, which is not applicable to the case on hand.
23. He has also placed reliance on a decision reported in AIR Online 2019 SC 534 [Prof.R.K.Vijayasarathy v. Sudha Seetharam]. But the facts are entirely different and there family dispute was there and hence the said principle cannot be made applicable to the case on hand.
24. He has also further relied on an unreported decision of this Court in Criminal Petition No.3798/2012 dated 09.10.2018 and Criminal Petition No.551/2014 dated 25.03.2019. But, the facts are entirely different.
15
25. In all the above cited decisions relied by the learned counsel for the petitioner/accused No.2 the consideration was regarding mens rea and non availability of prima facie material evidence and major decisions were regarding quashing of taking cognizance. But, they are not applicable to the facts of the case in hand as the claim for quashing the order of taking cognizance was already rejected in the present case in Criminal Petition No.8722/2019.
26. It is to be noted here that the deceased/accused No.1 i.e., father of the petitioner/accused No.2 has sold the property, which is already acquired and that sale deed attested by the present petitioner/accused No.2. He had knowledge of the acquisition and he had knowledge that his father was not owning to the extent of 04 acres of land, but, he persuaded the complainant/respondent to purchase the property. Both father and son were having 16 meeting of mind and hence question of quashing proceedings does not at arise at all.
27. The evidence if remains unchallenged is sufficient at this juncture to convict the present petitioner/accused no.2, wherein it is specifically alleged that the present petitioner/accused No.2 along with his deceased father/accused no.1 cheated the complainant and initially assured of comprise but did not compromise the matter and they have cheated by executing a sale deed to the extent of 04 acres of land though his father does not own 04 acres of land. Hence, evidence on record is sufficient to frame the charge.
28. The learned counsel for respondent/complainant has placed reliance on the decision reported in AIR 1992 SC 604 [State of Haryana and others v. Ch.Bhajan Lal and Ors.] and the decision reported in Criminal Appeal 17 No.330/2021 dated 13.04.2021 [Neeharika Infrastructure Pvt. Ltd., vs. State of Maharashtra and Ors.]. The Hon'ble Supreme Court has clearly held that the quashing of FIR or charge-sheet should be in a rarest or rare cases, wherein it is shown that it is a abuse of process of law. But, no such case is forthcoming in the instant case. Hence, question of quashing the proceedings does not arise at all and both the courts below after appreciating the evidences have rejected the application filed by the petitioner/accused No.2. Hence, the petition is devoid of any merits and needs to be rejected and accordingly, I proceed to pass the following ORDER The petition is rejected.
Sd/-
JUDGE sn