Bombay High Court
Mohammed Abdul Hamid S/O. Mohd Abdul ... vs Shaikh Kaiser Kamal on 7 March, 2019
Author: V. K. Jadhav
Bench: V. K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1646 OF 2017
1. Mohammed Abdul Hamid s/o Mohd. Abdul Bari
Age : 67 years, Occu. Pensioner
R/o H.No. 2/10/61/2, Behind Hanuman Mandir,
Labour Colony, Aurangabad.
Tq. & Dist. Aurangabad.
2. Shaker Ali Khan s/o Mahemood Ali Khan
Age : 47 years, Occu. Business & Agri.
R/o Kile-ark, Pragati Colony,
Aurangabad, Tq. & Dist. Aurangabad.
3. Shabnoor Begum d/o Mohammed Abdul Bari
Age : 62 years, Occu. Household,
R/o H. No. 2/10/61/2, Behind Hanuman Mandir,
Labour Colony, Aurangabad,
Tq. & Dist. Aurangabad.
4. Ambersingh Mahajan Janjale
Age : 45 years, Occu. Agri.
R/o Pachpirwadi, Tq. Gangapur,
Dist. Aurangabad. ... Petitioners
(Orig. Accused)
Versus
1. Shaikh Kaiser Kamal
S/o Mohammed Abdul Majid
Age : 38 years, Occu. Advocate,
R/o H.No. 8-5-62, Azam Colony,
Roshan Gate, Aurangabad.
2. The State of Maharashtra
Through Police Station, Gangapur.
[Copy to be served on Public Prosecutor
High Court of Judicature of Bombay
Bench at Aurangabad.] ... Respondents
(Respdt. No.1 Orig.
Complainant)
.....
Advocate for the Petitioners : Mr. H. I. Pathan
Advocate for Respondent No.1 : Mr. M. A. Madni
APP for Respondent No.2-State : Mr. A. P. Basarkar
.....
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CORAM : V. K. JADHAV, J.
RESERVED ON : 11.02.2019
PRONOUNCED ON : 07.03.2019
ORDER :-
1. By way of this criminal writ petition, the petitioners (original accused nos. 1, 2, 4 and 5 respectively) are challenging the judgment and order dated 05.10.2017 passed by the Assistant Sessions Judge, Vaijapur in Criminal Revision No. 10 of 2017 arising out of the order dated 30.08.2016 of issuance of process against the present petitioners/accused in R.C.C. No. 223 of 2015.
2. Brief facts giving rise to the present petition are as follows:
a. Petitioner no.1, the father of respondent no.1 (Majid), one deceased Mohammad Abdul Hamid (हहममद) and one more Mohammad Wajid were real brothers. The father of respondent no.1 left the house and therefore, did not get share in the joint family property. He later appeared and filed a civil suit (Spl.C.S.352/1996) for partition and share in the property, which was partly allowed. He therefore preferred an appeal in the District Court, Aurangabad (R.C.A. No. 149 of 2012) which too was partly allowed. The property at present is in possession of present petitioner no.1 (defendant no.1 in the civil suit). In first appeal, the District Court held that the ::: Uploaded on - 07/03/2019 ::: Downloaded on - 14/03/2019 10:10:56 ::: crwp1646.2017 -3- disputed property (agricultural land bearing block no.29) had been legally gifted by the deceased brother Hamid (हहममद) to the present petitioner by way of oral Hiba. Based on the said observation, the present petitioner executed a sale deed of the said property in favour of present petitioner no.2 on 21.04.2015. While drafting the sale deed, there was a typing mistake in the petitioner's name (vendor's name). Instead of typing हहममद, the name of the petitioner/vendor was wrongly typed as हहममद. The respondent grabbed the opportunity and filed a private complaint before the learned J.M.F.C., Gangapur alleging cheating and forgery at the hands of the present petitioners.
The learned Magistrate, vide impugned order, issued process against the present petitioners (accused nos. 1, 2, 4 and 5) under Sections 406, 420, 423, 467, 468 and 471 r/w 34 of IPC.
b. Aggrieved by the order of issue of process, the petitioners preferred revision (Criminal Revision No.10/2017) before the Assistant Sessions Judge, Vaijapur contending therein that a civil dispute has been revengefully coloured as a criminal case. The purchaser (petitioner no.2) despite being the bonafide purchaser of the property, has been roped as an accused and that the respondent no.1 has filed criminal case by taking undue advantage of a typographical mistake in the name of the vendor (petitioner no.1) in the sale deed etc. The said revision came to be dismissed with costs ::: Uploaded on - 07/03/2019 ::: Downloaded on - 14/03/2019 10:10:56 ::: crwp1646.2017 -4- by the Assistant Sessions Judge, Vaijapur by judgment and order dated 05.10.2017. Hence this Criminal Writ Petition.
3. Learned counsel for the petitioners submits that the impugned order of issuance of process is against the material placed on record and the same is passed without application of mind. He submits that the courts below have failed to appreciate that the sale deed executed by petitioner no.1 in the name of petitioner no.2 in respect of land Gat no.29, which is in the name of petitioner no.1, is his family property gifted to him by his deceased brother. The sale deed, the identity card of petitioner no.1 and the 7/12 extract of land Gat No.29 prima facie disclose no case of forgery, cheating and criminal breach of trust. Thus, even if the contents of the complaint are accepted to be true in its entirety, the same do not attract the provisions of Sections 406, 420, 467, 468 and 471. In absence of any other evidence to show any offence, the revisional court ought to have allowed the revision and set aside the order of issue of process. He submits that the courts below have failed to appreciate the provisions of Sections 463 and 464 of IPC, which explain forgery and making false documents, in its proper perspective and straight way came to the conclusion that there is prima facie case made out under Sections 467, 468 and 471 of IPC.
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4. Learned counsel submits that when a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed to allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration. But in this case, the complaint is not by the purchaser. On the other hand, the purchaser is made co-accused. It is not the case of the complainant that any of the accused tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induced him to do or omit to do anything which he would not do or omit if he were not so deceived. Nor did the complainant alleges that the first petitioner pretended to be the complainant while executing the sale deed. Therefore, it cannot be said that the first accused by the act of executing sale deed in favour of second accused or the second accused by reason of being the purchaser or third and fourth accused by reason of being the witnesses in regard to the sale deeds, deceived the complainant in any manner. As the ingredients of cheating as stated in section 415 are not found, it cannot be said that there was an offence punishable under section 420 of IPC. ::: Uploaded on - 07/03/2019 ::: Downloaded on - 14/03/2019 10:10:56 :::
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5. Learned counsel submits that in number of cases, the High Court as well as the Supreme Court observed the growing tendency of complainants attempting to give clock of a criminal offence to the matters which are essentially and purely civil in nature. This is done so either to apply pressure on the accused or out of enmity towards the accused or to subject the accused to harassment. The Criminal Court should ensure that the proceedings before it are not used for settling scores or to pressurize parties to settle the civil disputes. the present case also appears to be the pressure tactics to settle the civil dispute pending before the civil court for partition between respondent/complainant and petitioner no.1. He submits that the respondent/complainant is an Advocate by profession and trying to misuse the procedure of law in making harassment of petitioners by filing criminal cases instead of pursuing civil remedy. The learned counsel submits that the criminal proceeding is required to be rejected by setting aside the order of issue of process.
6. Learned counsel for the petitioners, in order to substantiate his contention, placed reliance on the case of Mohammed Ibrahim and others vs. State of Bihar and another, reported in (2009) 8 SCC
751.
7. Learned counsel for respondent no.1/complainant submits that ::: Uploaded on - 07/03/2019 ::: Downloaded on - 14/03/2019 10:10:56 ::: crwp1646.2017 -7- the criminal act and intentional suppression on the part of the petitioners is that name of petitioner no.1 nowhere existed in the 7/12 extract of land Gat no.29. The said land was and is standing in the name of deceased Md. Abdul Hameed (हहममद) i.e. the uncle of respondent no.1. Petitioner no.2 was also having complete knowledge about the same. Even then he got executed the sale deed from petitioner no.1. He also got executed the sale deed of other land from petitioner no.1 in his name where the original name of petitioner is mentioned. Hence it can be clearly seen that petitioner no.2 is equally involved in the cheating and forgery along with other petitioners. Petitioner no.3 is the real sister of petitioner no.1. She also had complete knowledge that the land Gat No.29 is standing in the name of the deceased brother. In spite of the same, she stood witness to the said sale deed and committed criminal breach of trust and she is also equally involved in the criminal act with other petitioners. Learned counsel submits that petitioner no.4 is a well- known personality of the place where land Gat No.29 is situated. He has identified both the parties to the said registered document. Hence, he is also involved in the said criminal act.
8. Learned counsel submits that the issue is not about the right or share in the property, but it is all about executing registered document of the property standing in the name of deceased i.e. land ::: Uploaded on - 07/03/2019 ::: Downloaded on - 14/03/2019 10:10:56 ::: crwp1646.2017 -8- Gat No.29. He submits that respondent no.1 and his family members had initiated proceedings against petitioner nos.1 and 3 and others for partition and separate possession and the Hon'ble High Court has granted 1/3rd share to respondent no.1 and his family in the Second Appeal. Thereafter, petitioner no.1 and others have also approached to the Apex Court, but their petition was dismissed by the Apex Court. The criminal action initiated against the petitioners is quite right and legal as all of them in collusion with each other, with complete knowledge, have committed the offence as alleged by getting the document registered about land Gat No.29 which is standing in the name of deceased Md. Abdul Hameed who died on 05.01.1996.
9. Learned counsel further submits that when the sale deed of land Gat No.29 was executed, at that time the said land was under
litigation before the Hon'ble High Court in Second Appeal No.200 of 2015. Respondent no.1 has also got registered the notice of lis- pendens with the Sub-Registrar by paying requisite stamp duty and the same was made to the knowledge of petitioner no.1. In-spite of complete knowledge of the same, Petitioner no.1 has executed the said registered document with ill intention. Respondent no.1 is not the purchaser to the said transaction as he is having share and right in the said land. This fact was suppressed by the petitioners. Hence, the ingredients of the offences of forgery, cheating, criminal breach of ::: Uploaded on - 07/03/2019 ::: Downloaded on - 14/03/2019 10:10:56 ::: crwp1646.2017 -9- trust have emerged. Learned counsel submits that the case cited by the petitioners is regarding quashing of FIR, but in the present matter, the learned Magistrate, after receiving the report under Section 202 of Cr.P.C., formed the correct view and passed order of issuance of process against the petitioner. He submits that interference by this Court is unwarranted.
10. Learned counsel for respondent no.2, in order to substantiate his contentions, has placed reliance on the following cases:
a. Ganga Dhar Kalita vs State of Assam and others, reported in (2015) 9 SCC 647.
b. Arun Bhandari vs State of Uttar Pradesh and Ors., reported in (2013) 2 SCC 801.
11. I have heard learned counsel for the respective parties and the learned APP for the respondent State. Perused the memo of the petition, annexures thereto and the affidavit-in-reply filed by respondent no.1.
12. It is a part of record that petitioner No.1 has entered into another transaction in respect of property situated in Paithan with petitioner No.2 herein, by referring his original name Hameed. It is not disputed that deceased brother Hamid was original owner of the ::: Uploaded on - 07/03/2019 ::: Downloaded on - 14/03/2019 10:10:56 ::: crwp1646.2017 -10- property which is subject matter of the present case. He had purchased it from one Pundlik Eknath Khandekar way back in the year 1991. It further appears that name of deceased Hameed was remained in the revenue record despite his death in the year 1996. On perusal of sale deed in question the revisional court has rightly observed that there was no single typing mistake in the sale deed but the name has been shown as Hameed everywhere in the sale deed. The property card also bears the name Hameed. Furthermore, the 7x12 extract of the property which was used for the purpose of sale deed and which is part and parcel of the sale deed bears owner's name as Hameed. The petitioner No.1 claims to have become owner of the suit property prior to 1996 by way of gift deed and disposed of the property on the basis of oral gift deed. However, it is part of record that petitioner No.1 had used 7x12 extract standing in the name of his deceased brother as if it is his own property card. He had not disclosed in the sale deed that the suit land stood in the name of his deceased brother. Thus, there is prima facie evidence about execution of fraudulent sale deed.
13. In the case of Mohammed Ibrahim and others vs. State of Bihar and another, reported in (2009) 8 SCC 751, relied upon by learned counsel for the petitioners, in para 14 to 17, the Supreme Court has made the following observations:-
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"14. An analysis of section 464 of Penal Code shows that it divides false documents into three categories:
1. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
In short, a person is said to have made a `false document', if (i) he made or executed a document claiming to be someone else or authorized by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.
15. The sale deeds executed by first appellant, clearly and obviously do not fall under the second and third categories of `false documents'. It therefore remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the ::: Uploaded on - 07/03/2019 ::: Downloaded on - 14/03/2019 10:10:56 ::: crwp1646.2017 -12- intention of taking possession of complainant's land (and that accused 2 to 5 as the purchaser, witness, scribe and stamp vendor colluded with first accused in execution and registration of the said sale deeds) would bring the case under the first category.
16. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorized or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bonafide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of `false documents', it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed.
17. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorized by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither section 467 nor section 471 of the Code are attracted." ::: Uploaded on - 07/03/2019 ::: Downloaded on - 14/03/2019 10:10:56 :::
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14. Prima facie, it appears that petitioner No.1 has executed the documents claiming himself to be deceased Hameed. He had executed the document by practicing a deception. The observations made by the Supreme Court in the aforesaid case are in the different context and shall not be made applicable to the facts and circumstances of the present case. The recitals in the sale deed including the recital for protection of Registrar of registration office, prima facie points out the involvement of the persons in the commission of crime, including the requisite knowledge which they possess before execution of the sale deed in question. There are sufficient grounds for proceeding with the case and the learned Judge of the trial court has thus rightly issued process against the petitioners. I find no substance in this criminal writ petition. The Revisional Court in its order has elaborately discussed all the points. Hence, the following order:-
ORDER Criminal writ petition No. 1646 of 2017 is hereby dismissed.
( V. K. JADHAV, J.) rlj/ ::: Uploaded on - 07/03/2019 ::: Downloaded on - 14/03/2019 10:10:56 :::