Madhya Pradesh High Court
Shyam vs The State Of Madhya Pradesh on 11 July, 2023
Author: Hirdesh
Bench: Hirdesh
1
HIGH COURT OF MADHYA PRADESH AT INDORE
CRIMINAL APPEAL NO.4843 OF 2023
(Shyam & Another vs The State of Madhya Pradesh)
CRIMINAL APPEAL NO.4935 OF 2023
(Radheshyam vs The State of Madhya Pradesh)
And
CRIMINAL APPEAL NO.5480 OF 2023
(Bherulal vs The State of Madhya Pradesh)
Indore, Dated 11.07.2023
Mr. Avinash Sirpurkar, senior counsel along with Mr.
Abhishek Rathore, counsel for the appellants - Shyam and
Omprakash in Criminal Appeal No.4843 of 2023.
Mr. Sanjay Kumar Sharma, counsel for the appellant -
Radheshyam in Criminal Appeal No.4935 of 2023.
Mr. Himanshu Thakur, counsel for the appellant - Bherulal
in Criminal Appeal No.5480 of 2023.
Mr. Kamal Tiwari, counsel for the respondent/State.
Mr. Pourush Ranka, counsel for the objector. Ms. Mini Ravindran, counsel for the objector. Mr. Rishi Tiwari, counsel for the objector. Mr. Mohan Sharma, counsel for the objector. Ms. Pranjali Yajurvedi, counsel for the objector. _____________________________________________________ (1) Heard on the point of admission.
(2) The appeal is admitted for hearing.
Signature Not Verified Signed by: ARUN NAIR Signing time: 12-07- 2023 17:32:12 2HIGH COURT OF MADHYA PRADESH AT INDORE CRIMINAL APPEAL NO.4843 OF 2023 (Shyam & Another vs The State of Madhya Pradesh) CRIMINAL APPEAL NO.4935 OF 2023 (Radheshyam vs The State of Madhya Pradesh) And CRIMINAL APPEAL NO.5480 OF 2023 (Bherulal vs The State of Madhya Pradesh) (3) Record has been received.
(4) Also heard on IA No.4850/2023 which is first application under Section 389 (1) of Criminal Procedure Code, 1973 filed on behalf of appellant No.1 - Shyam Sethiya S/o Late Shri Komalram Ji Sethiya and appellant No.2 - Omprakash S/o Late Shri Komalram Ji Sethiya who has been convicted by learned First Additional Sessions Judge, Mandsaur, District- Mandsaur (MP) in Session Trial No.500210/2010 vide judgment dated 31.03.2023 and has been sentenced them as under:-
For Appellant No.1 - Shyam Sethiya Conviction Sentence Section & Act Imprisonment Fine Imprisonment in Amount lieu of fine 420 IPC 04 years RI Rs.5000/- 03 months RI 120B IPC 03 years RI Rs.4000/- 02 months RI 201 IPC 03 Years RI Rs.4000/- 02 months RI Signature Not Verified Signed by: ARUN NAIR Signing time: 12-07- 2023 17:32:12 3 HIGH COURT OF MADHYA PRADESH AT INDORE CRIMINAL APPEAL NO.4843 OF 2023 (Shyam & Another vs The State of Madhya Pradesh) CRIMINAL APPEAL NO.4935 OF 2023 (Radheshyam vs The State of Madhya Pradesh) And CRIMINAL APPEAL NO.5480 OF 2023 (Bherulal vs The State of Madhya Pradesh) For Appellant No.2 - Omprakash Conviction Sentence Section & Imprisonment Fine Amount Imprisonment in Act lieu of fine 420 IPC 04 years RI Rs.5000/- 03 months RI ID 74532 467 IPC 04 years RI Rs.5000/- 03 months RI ID 74532 468 IPC 04 years RI Rs.5000/- 03 months RI ID 74532 471 IPC 04 years RI Rs.4000/- 02 months RI ID 74532 120B IPC 03 years RI Rs.4000/- 02 months RI ID 74532 201 IPC 03 years RI Rs.4000/- 02 months RI ID 74532 (5) Counsel for the appellants submitted that appellants are innocent and they have been falsely implicated in the aforesaid offence and that there is no nexus between the appellants and the accused persons and the allegations levelled on the appellants are vague and bogus. This case is based on documentary evidence and Signature Not Verified Signed by: ARUN NAIR Signing time: 12-07- 2023 17:32:12 4 HIGH COURT OF MADHYA PRADESH AT INDORE CRIMINAL APPEAL NO.4843 OF 2023 (Shyam & Another vs The State of Madhya Pradesh) CRIMINAL APPEAL NO.4935 OF 2023 (Radheshyam vs The State of Madhya Pradesh) And CRIMINAL APPEAL NO.5480 OF 2023 (Bherulal vs The State of Madhya Pradesh) there is no direct evidence against the appellants and mukhtarnama was produced before the trial Court during the trial.
He further submits that incident took place between 09.06.1998 to 24.07.2000 and at that point of time the appellant No.2- Omprakash had given the resignation from the post of President from M/s. Basant Grih Nirman Sahkari Sanstha Maryadit due to ill-health and his resignation was accepted by the aforesaid Grih Nirman Samiti. He submits that before the learned trial Court, the handwriting expert has been examined as (PW/24) and he did not certify the handwriting on the proceedings and there is no matching of handwriting on the documents, hence there is no evidence on record to prove that there was any kind of tampering or destroying of the evidence by the appellants. No malafide intention to commit cheating with the persons had been proved and in this case the plots were purchased by the buyers and there is no role of appellants in that regard. Thereafter,one Bagdilal executed the Power of Attorney (POA) in his favour and has sold the plots.
Signature Not Verified Signed by: ARUN NAIR Signing time: 12-07- 2023 17:32:12 5HIGH COURT OF MADHYA PRADESH AT INDORE CRIMINAL APPEAL NO.4843 OF 2023 (Shyam & Another vs The State of Madhya Pradesh) CRIMINAL APPEAL NO.4935 OF 2023 (Radheshyam vs The State of Madhya Pradesh) And CRIMINAL APPEAL NO.5480 OF 2023 (Bherulal vs The State of Madhya Pradesh) Hence the appellants were never involved in the buying or selling of the forged plots. He submits that appellant No.1 - Shyam is suffering from liver fibrosis and he was still under the treatment and is also suffering from blood pressure and sugar which also affects his kidney. The appellant No.2 - Omprakash is a patient of slip disc and both the appellants are in custody since last five months. Counsel for the appellants further submitted that according to Ex.P/81 and Ex.P/25, the original record of Mukhtarnama was not produced before the trial Court and Ex.P/41, P/42 and P/43 are the registered sale deeds which was executed in favour of objectors but they did not deposited the requisite stamp fee before the Registry Office and hence their mutation had been stayed. He further cited the evidence of PW-19 and other objectors and PW-3 in para-6 of trial Court judgment has stated that sellor and buyer of the aforesaid plots is not appellant No.1 - Shyam. He also elaborated the evidence of Dinesh (PW/7) and PW/6 and has stated that there is no interest of objectors in Signature Not Verified Signed by: ARUN NAIR Signing time: 12-07- 2023 17:32:12 6 HIGH COURT OF MADHYA PRADESH AT INDORE CRIMINAL APPEAL NO.4843 OF 2023 (Shyam & Another vs The State of Madhya Pradesh) CRIMINAL APPEAL NO.4935 OF 2023 (Radheshyam vs The State of Madhya Pradesh) And CRIMINAL APPEAL NO.5480 OF 2023 (Bherulal vs The State of Madhya Pradesh) respect of aforesaid plots. He further submits that PW/8 has accepted the fact that due to shortage of stamp, registry was not executed. He also submits that PW/1 has return the money as D/15. He submits that appellants are convicted for four years jail sentence and at present they are in jail for the last five months. The final disposal of the appeal is likely to take sufficient long time. Hence prays for suspension of sentence and grant of bail to the present appellants.
(6) Per contra, counsel for the respondent/State has opposed the application and prays for its rejection.
In Criminal Appeal No.4935 of 2023 (7) Heard on IA No.5054 of 2023 which is first application under Section 389(1) of the Code of Criminal Procedure, 1973, filed on behalf of sole appellant - Radheshyam S/o Shri Balaram Patidar. The appellant has been convicted and sentenced as under:-
Signature Not Verified Signed by: ARUN NAIR Signing time: 12-07- 2023 17:32:12 7HIGH COURT OF MADHYA PRADESH AT INDORE CRIMINAL APPEAL NO.4843 OF 2023 (Shyam & Another vs The State of Madhya Pradesh) CRIMINAL APPEAL NO.4935 OF 2023 (Radheshyam vs The State of Madhya Pradesh) And CRIMINAL APPEAL NO.5480 OF 2023 (Bherulal vs The State of Madhya Pradesh) Conviction Sentence Section & Act Imprisonment Fine Amount Imprisonment in lieu of fine 420 IPC 04 years RI Rs.5000/- 03 months RI 120B IPC 03 years RI Rs.4000/- 02 months RI (8) Counsel for the appellant submits that appellant -
Radheshyam is an employee of Shyam and Omprakash. He further submits that appellant was not an accused in the main case and his name was mentioned in the supplementary chargesheet only and he was convicted and sentenced only under Section 420 and 120B of IPC. He was not found guilty of making forged documents and that there are so many contradictions and omissions in the statements of prosecution witnesses. There is no signature of appellant in any document nor any receipt was found, hence there is no prima-facie case against the present appellant. He also submits that appellant was on bail during trial and he has not misused the liberty so granted to him. The final hearing of this Signature Not Verified Signed by: ARUN NAIR Signing time: 12-07- 2023 17:32:12 8 HIGH COURT OF MADHYA PRADESH AT INDORE CRIMINAL APPEAL NO.4843 OF 2023 (Shyam & Another vs The State of Madhya Pradesh) CRIMINAL APPEAL NO.4935 OF 2023 (Radheshyam vs The State of Madhya Pradesh) And CRIMINAL APPEAL NO.5480 OF 2023 (Bherulal vs The State of Madhya Pradesh) appeal would take considerably long time. Hence prays for suspension of sentence and grant of bail to the appellant. (9) Per contra, counsel for the respondent/State opposes the application and prays for its rejection.
In Criminal Appeal No.5480 of 2023 (10) Heard on IA No.5609 of 2023 which is first application under Section 389 of the Code of Criminal Procedure, 1973, filed on behalf of sole appellant - Bherulal S/o Shri Dev Kumawat. The appellant has been convicted and sentenced as under:-
Conviction Sentence
Section & Act Imprisonment Fine Amount Imprisonment
in lieu of fine
420 IPC 04 years RI Rs.5000/- 03 months RI
467 IPC 04 years RI Rs.5000/- 03 months RI
468 IPC 04 years RI Rs.5000/- 03 months RI
471 IPC 04 years RI Rs.5000/- 03 months RI
120-B IPC 03 years RI Rs.4000/- 02 months RI
201 IPC 03 years RI Rs.4000/- 02 months RI
Signature Not Verified
Signed by: ARUN NAIR
Signing time: 12-07-
2023 17:32:12
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HIGH COURT OF MADHYA PRADESH AT INDORE CRIMINAL APPEAL NO.4843 OF 2023 (Shyam & Another vs The State of Madhya Pradesh) CRIMINAL APPEAL NO.4935 OF 2023 (Radheshyam vs The State of Madhya Pradesh) And CRIMINAL APPEAL NO.5480 OF 2023 (Bherulal vs The State of Madhya Pradesh) (11) Counsel for the appellant submits that appellant - Bherulal is an employee of Omprakash and Shyam Sethiya and there is no signature of Bherulal in the registry - Ex.P/42, Ex.P/44 and Ex.P/46. The appellant is seventy years old person and mukhtarnama was not produced by the prosecution and therefore no case was made out against the present appellant. Hence prays for suspension of sentence and grant of bail to the present appellant.
(12) Per contra, counsel for the respondent/State opposes the application and prays for its rejection. (13) Counsel for the objectors have opposed the application and prays for its rejection on the ground that all the accused persons are actively involved and participated in the offence. They submitted that appellants are the masterminds of the entire crime and has fabricated the false and forged documents with an intention to cheat number of innocent persons and they are having past criminal antecedents. They further submits that appellant -
Signature Not Verified Signed by: ARUN NAIR Signing time: 12-07- 2023 17:32:12 10HIGH COURT OF MADHYA PRADESH AT INDORE CRIMINAL APPEAL NO.4843 OF 2023 (Shyam & Another vs The State of Madhya Pradesh) CRIMINAL APPEAL NO.4935 OF 2023 (Radheshyam vs The State of Madhya Pradesh) And CRIMINAL APPEAL NO.5480 OF 2023 (Bherulal vs The State of Madhya Pradesh) Bherulal was the President of M/s. Basant Grih Nirman Sahkari Samiti Maryadit and others are time to time President of the said Grih Nirman Samiti or Society and were actively participated in the aforementioned crime by doing forgery and cheated the innocent buyers. They forged the Power of Attorney (POA) executed in favour of imaginary person called Bagdiram who has been allegedly authorized to sell the plots which has been purchased by the plot holders of Vivek Nagar Colony from the present appellant along with other partners. Hence prays for rejection of the suspension application on the aforesaid grounds. (14) On behalf of PW/6, PW/9 and PW/1 is the son of objector PW/10 has opposed the suspension application and has submitted that appellants / accused persons are the masterminds of the entire offence who has executed the registered sale deed with the aid of other accused persons and has also submitted that appellants had developed the Society called M/s. Basant Grih Nirman Sahkari Sanstha Maryadit with an intention to cheat innocent buyers with Signature Not Verified Signed by: ARUN NAIR Signing time: 12-07- 2023 17:32:12 11 HIGH COURT OF MADHYA PRADESH AT INDORE CRIMINAL APPEAL NO.4843 OF 2023 (Shyam & Another vs The State of Madhya Pradesh) CRIMINAL APPEAL NO.4935 OF 2023 (Radheshyam vs The State of Madhya Pradesh) And CRIMINAL APPEAL NO.5480 OF 2023 (Bherulal vs The State of Madhya Pradesh) the help of other accused persons and has forged the Power of Attorney executed in favour of imaginary person known as Bagdiram who has been allegedly authorized to sell the plots which has been purchased by the plot holders of Vivek Nagar Colony from the present appellants along with other partners. They further submitted that the accused persons started duping the innocent buyers by showing themselves to be the owners of Vivek Nagar Colony by selling the plots to 72 plot holders by accepting huge amount of money (lacs of rupees) for the sale consideration, whereas no such colony was ever purchased by them from the actual owner. They also submitted that Civil Suit No.75-A of 2011 has been set-aside by learned Third Additional Sessions Judge, Mandsaur, in respect of sale deed executed by one Bagdiram. It is also submitted that this case is not crime against individual but it is a case of crime against the Society and has stated that para Nos.24, 28 and 29 of trial Court's judgment is relevant and prays for rejection of all suspension applications.
Signature Not Verified Signed by: ARUN NAIR Signing time: 12-07- 2023 17:32:12 12HIGH COURT OF MADHYA PRADESH AT INDORE CRIMINAL APPEAL NO.4843 OF 2023 (Shyam & Another vs The State of Madhya Pradesh) CRIMINAL APPEAL NO.4935 OF 2023 (Radheshyam vs The State of Madhya Pradesh) And CRIMINAL APPEAL NO.5480 OF 2023 (Bherulal vs The State of Madhya Pradesh) (15) We have perused the original record and heard counsel for the parties at length.
(16) After hearing counsel for the parties and on perusal of the record and looking to the evidence of prosecution witnesses, it was found that it was a big land scam by using forged sale deed and manipulation of land records to show themselves to be the owners of the said Society or Colony. Nowadays it is a fashion of organized crime network obtained plan and executed these intricate scam exploiting vulnerable unless common treatment and resorting to intimating or threat or forced them to vacate their property. It is true that appellants are convicted to four years of jail sentence in each offences and they are in jail since last five months and during trial the appellants were on bail and has not misused the liberty so granted to them but it is not a ground to grant suspension to the appellants. In this case, it was also seen that over and above 144 persons have been duped and on perusing the prosecution evidence it is also found that present appellants were Signature Not Verified Signed by: ARUN NAIR Signing time: 12-07- 2023 17:32:12 13 HIGH COURT OF MADHYA PRADESH AT INDORE CRIMINAL APPEAL NO.4843 OF 2023 (Shyam & Another vs The State of Madhya Pradesh) CRIMINAL APPEAL NO.4935 OF 2023 (Radheshyam vs The State of Madhya Pradesh) And CRIMINAL APPEAL NO.5480 OF 2023 (Bherulal vs The State of Madhya Pradesh) actively involved in the present crime and has executed the forged sale deed and has cheated the aforesaid 144 innocent buyers/persons. Hence in view of the aforesaid facts and circumstances of the case, no case is made out for grant of suspension to the appellants. Accordingly the IA No.4850/2023 in Criminal Appeal No.4843/2023, IA No.5054/2023 in Criminal Appeal No.4935/2023 and IA No.5609/2023 in Criminal Appeal No.5480/2023 stands rejected.
(S.A. DHARMADHIKARI) (HIRDESH)
JUDGE JUDGE
Arun/-
Signature Not Verified
Signed by: ARUN NAIR
Signing time: 12-07-
2023 17:32:12
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HIGH COURT OF MADHYA PRADESH AT INDORE CRIMINAL APPEAL NO.4843 OF 2023 (Shyam & Another vs The State of Madhya Pradesh) CRIMINAL APPEAL NO.4935 OF 2023 (Radheshyam vs The State of Madhya Pradesh) And CRIMINAL APPEAL NO.5480 OF 2023 (Bherulal vs The State of Madhya Pradesh) Signature Not Verified Signed by: ARUN NAIR Signing time: 12-07- 2023 17:32:12