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Karnataka High Court
Sri Mehaboob vs Sri. Rukmuddin on 7 May, 2024
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CRL.RP No.100096 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 07TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.RACHAIAH
CRIMINAL REVISION PETITION NO.100096 OF 2017
BETWEEN:
SRI. MEHABOOB
S/O RAJESAB JAMADAR
AGED ABOUT 53 YEARS
OCC: CIVIL CONTRACTOR
R/O NEAR PANKA MASJID, BAGALKOT
...PETITIONER
(BY SRI. T M NADAF, ADVOCATE)
AND:
1. SRI. RUKMUDDIN
S/O ABDULGANI @ GANISAB SAUDAGAR
AGED ABOUT 73 YEARS
OCC: RETD. VILLAGE ACCOUNTANT
R/O MUJAWAR CHAWL, STATION ROAD
BAGALKOT
2. THE STATE OF KARNATAKA
REPRSENTED BY SPP
HIGH COURT OF KARNATAKA BUILDINGS
DHARWAD
AMENDMENT CARRIED OUT AS PER COURT ORDER DATED
28/03/2017.
...RESPONDENTS
(BY SRI. PRAVEEN, HCGP FOR R2;
SRI. S B HEBBALLI, ADVOCATE FOR R1)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
401 OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT IN
CRIMINAL APPEAL NO.91/2010 DATED 20.02.2017 ON THE FILE
OF PRINCIPAL DISTRICT AND SESSIONS JUDGE, BAGALKOT AND
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED
20.10.2010 IN C.C.NO.1/2008 ON THE FILE OF CHIEF JUDICIAL
MAGISTRATE, BAGALKOT AND ETC.,
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CRL.RP No.100096 of 2017
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD THROUGH PHYSICAL HEARING / VIDEO
CONFERENCING HEARING AND RESERVED ON 12.02.2024
BEFORE THE PRINCIPAL BENCH OF BENGALURU, COMING ON
FOR PRONOUNCEMENT OF ORDER, THROUGH VIDEO
CONFERENCING, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
1. The petitioner herein being aggrieved by the judgment of conviction and order of sentence dated 20.10.2010 in C.C.No.1/2008 on the file of the Chief Judicial Magistrate, Bagalkot and its confirmation order dated 20.02.2017 in Criminal Appeal No.91/2010 on the file of the Principal District and Sessions Judge, Bagalkot, has preferred this revision petition.
2. The rank of the parties in the Trial Court will be considered henceforth for convenience.
Brief facts of the case are as under:-
3. The complainant and his two brothers are said to be the owners of the property bearing C.T.S. No.547/A situated at Ward No.2 of Bagalkot city measuring 91.14 sq.mtrs., out of which, 18 ft. x 20 ft. is an open site and remaining portion is having residential building. The father of the complainant during his life time in the year 1976, sold an open space to -3- CRL.RP No.100096 of 2017 Sri Abdul Rehmansab Mehboobsab Khureshi. The said Khureshi had sold the property in the year 1991 to the accused No.1.
4. The father of the complainant died on 22.05.1990. After death of his father, the complainant shifted to Badami as he was working as Revenue Officer and other two brothers were also shifted to different places. The property has been submerged under the Upper Krishna Project of Almatti on 15.02.1996. The accused No.2 being a Land Acquisition Officer passed an award and valued the entire property for Rs.3,93,150.42 ps. The said award was passed jointly in the name of Abdulgani and Mehaboobsab Jamadar.
5. It is further submitted that accused Nos.1 and 2 created false documents and succeeded in modifying the earlier award. To get the modified award, both accused Nos.1 and 2 prepared false affidavit and filed an application in the name of the father of the complainant, produced before the authority on 04.12.1999. However, the father of the complainant died on 22.05.1990. Further, both the accused created false panchanama on 21.09.1999 and claiming that the accused No.1 constructed a building and obtained compensation to the building portion knowingly that it was not constructed by him. Therefore, a private complaint came to be registered against -4- CRL.RP No.100096 of 2017 accused Nos.1 and 2 for having colluded and fraudulently obtained compensation which was legally payable to the father of the complainant. Upon registration of complaint, the said complaint was referred to the jurisdictional police for investigation, the jurisdictional police after conducting the investigation, submitted the charge sheet.
6. Heard Sri T.M.Nadaf, learned counsel for the petitioner, Sri.S.B.Hebballi, learned counsel for respondent No.1 and Sri Praveen Y.Devareddiyavara, learned High Court Government Pleader for the respondent No.2 - State.
7. It is the submission of learned counsel for petitioner that the concurrent findings recorded by the Courts below in recording the conviction is erroneous and not proper, therefore, it is liable to be set aside.
8. It is further submitted that even though the jurisdictional police filed 'B' report, the Trial Court took cognizance stating that accused Nos.1 and 2 have committed offences under Sections 468 and 471 r/w Section 34 of Indian Penal Code (for short 'IPC') without passing any order regarding rejection of the said report which is erroneous and not proper.
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9. It is further submitted that Ex.P6 stated to have been produced before the authority to get the compensation which does not disclose as to who has produced the said document before the authority. The thumb impression found on the document has not been sent to FSL for clarification. In the absence of the said clarification, it cannot be said that the accused No.1 had affixed the thumb impression on behalf of the father of the complainant.
10. It is further submitted that the evidence of DWs.1, 2 and 3 are consistent that the accused No.1 was in possession of the building situated in the alleged place. However, the Trial Court failed to take note of the said evidence and also failed to take note of the mahazar conducted by the authority.
11. It is further submitted that the complainant has not produced any document to show that the building was constructed by his father during his lifetime and he was regularly paying the tax to the authority or regularly paying the electricity charges to the concerned authority. Mere stating that he is the absolute owner of the house property is not sufficient to conclude that he was the owner of the house property. However, the Trial Court and the Appellate Court failed to take note of this aspect and recorded the conviction -6- CRL.RP No.100096 of 2017 which is not proper and also inappropriate, therefore, the concurrent findings have to be set aside. Making such submission, learned counsel for petitioner prays to allow the petition.
12. Per contra, learned counsel for respondent No.1 vehemently justified the concurrent findings and submitted that Ex.P6 affidavit was filed by the accused in order to obtain compensation in respect of house property situated in the disputed property, even though the accused No.1 was not the owner of the said house property. Moreover, the said affidavit is filed in the name of the dead person on 04.12.1999. In fact, the father of the complainant died in the year 1990 itself.
13. It is further submitted that the Trial Court and the Appellate Court after appreciating the oral and documentary evidence on record, recorded the conviction properly and it is not appropriate to interfere with the said findings. Moreover, the scope of revision is very limited, the Revisional Court cannot traverse beyond its scope. Making such submission, learned counsel for respondent No.1 prays to dismiss the petition.
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14. Learned High Court Government Pleader for respondent No.2 - State vehemently justified the judgments of the Courts below and adopted the arguments of learned counsel for respondent No.1 and prays for dismissal of the petition.
15. After having heard learned counsel for the respective parties and also perused the findings of the Trial Court and the Appellate Court, now it is relevant to refer not only the facts of the case, but also the evidence of all the witnesses to arrive at a conclusion as to whether any error committed by the Courts below in appreciating both oral and documentary evidence on record.
16. It is an admitted fact that the complainant is also one of the co-sharers of the property which was submerged under the Upper Krishna Project. According to complainant, his father had constructed a house in the property situated at Bagalkot city and remaining half portion was sold to the vendor of the accused. Thereafter, the vendor sold the property to the accused No.1 for valuable consideration.
17. Admittedly the property was submerged and compensation was awarded jointly in respect of the entire property in the name of both the father of the complainant and -8- CRL.RP No.100096 of 2017 accused No.1. Ex.P5 is the order passed by the Special Land Acquisition Officer. As per the said order, the accused No.1 was the owner of the house property situated in the property No.CTS 547-A of Bagalkot city. The said order has been passed on 21.10.1999. However, Ex.P6 stated to have been produced before the authority on 04.12.1999. No doubt, the said document contained the thumb impression of the executant. According to the complainant, the said executant died on 22.05.1990, that is much prior to filing of the affidavit. Be that as it may, the panchanama which was conducted by the authority before passing an award on 21.09.1999 in the presence of the witnesses. As per the said panchanama, the house property belongs to accused No.1. The Special Land Acquisition Officer passed an award on the strength of the panchanama which is marked as Ex.P8 on 21.09.1999.
18. In order to attract the ingredients of Section 468 of IPC, the basic elements of forgery which are required to be established are,
i) the making of false document or part of it;
ii) such making should be with such intention as is specified in the section
(a) to cause damage or infringe to -9- CRL.RP No.100096 of 2017
(i) the public, or
(ii) any person.
(b) to support any claim or title, or
(c) to cause any person to part with property, or
(d) to cause any person to enter into an express
or implied contract, or
(e) to commit fraud or that fraud may be
committed.
In the present case, even though the allegations made against accused No.1 that he submitted the affidavit before the authority to get compensation under the Upper Krishna Project in the name of the father of the complainant, except complainant, no other witnesses have deposed that the accused No.1 had produced the affidavit. Moreover, DWs.1, 2 and 3 are consistent that DW.1 was the owner of the house property. DW.1 produced several documents relating to the house property and he was regularly paying the tax and electricity bill to the concerned authority. Thus being the fact, I am of the considered opinion that both the Courts have committed error in holding that the accused No.1 obtained compensation fraudulently even though he was not owner of the house property.
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CRL.RP No.100096 of 2017
19. Further the Trial Court and Appellate Court recorded the conviction for the offence under Section 471 of IPC which states that, whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record. In the present case, even though several notices having been issued to the father of the complainant regarding call for objections for fair compensation, none of the family members came forward to file objections and nobody present at the time of conducting mahazar of the place which was submerged in the said project. Though, it appears that the compensation has been bifurcated on the strength of Ex.P6, whether the said affidavit has been filed by the accused No.1 or not has not been established by the prosecution. Moreover, the award as per Ex.P5 was passed on the strength of Ex.P8 - mahazar. The evidence of DWs.2 and 3 further corroborated the documentary evidence regarding ownership of the house property. In the absence of specific evidence regarding the intention of cheating by producing the false document, conviction ought not to have been recorded. In my considered opinion, both the Courts
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CRL.RP No.100096 of 2017have committed error in recording the conviction even though the ingredients of the above said provisions are not established.
20. In the light of the observations made above, I proceed to pass the following:-
ORDER
(i) The Criminal Revision Petition is allowed.
(ii) The judgment of conviction and order of
sentence dated 20.10.2010 passed in
C.C.No.1/2008 by the Chief Judicial Magistrate, Bagalkot and the judgment and order dated 20.02.2017 passed in Crl.A.No.91/2010 by the Principal District and Sessions Judge, Bagalkot, are set aside.
(iii) The petitioner is acquitted for the offence under Sections 468 and 471 r/w Section 34 of IPC.
(iv) Bail bonds executed, if any, stand cancelled.
Sd/-
JUDGE Bss